ISSUE 4 │ VOL. 8 │WINTER 2020

NYSCEF ALERT SYSTEMS: BEWARE OF NOTIFICATION RELIANCE

John McGorty | EVP of Business Development | PHP

As more and more appeals are falling under the new NYS Appellate Division e-filing 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 e-filing is “pending.” Once the Court approves the document you have e-filed, 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 e-filing. 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. Note: paper copy requirements/submissions have yet to be reinstated, due to COVID-19 related policies.

Lastly, you may receive a notification regarding an e-filed 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 docketing event. 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.

WHAT WILL HAPPEN IF COUNSEL FOR APPELLANT DOES NOT ENTER THE
INITIAL INFORMATION REQUIRED UNDER SECTION 1245.3(A)?

ERIC J. KUPERMAN, ESQ. | EVP of Sales | PHP

With the onset of electronic filing in the Appellate Division during the course of the past year, specific rules regarding preliminary e-filing requirements in the Appellate Division have been promulgated. Specifically, section 1245.3(a) of the Electronic Filing Rules of the Appellate Division states, in pertinent part, that “counsel for the appellant or the petitioner… shall within 14 days of filing of a notice of appeal, or entry of an order granting leave to appeal, or entry of an order transferring a matter to the Appellate Division: (1) register or confirm registration as an authorized e-filer with NYSCEF; and (2) enter electronically in NYSCEF such information about the cause and parties; and e-file such documents, as the court shall require.”

The aforementioned process is colloquially known as the initialization of a Notice of Appeal at the Appellate Division. The question arises: what are the consequences for an Appellant who fails to meet this 14 day deadline? In short, for the moment, there are no grave consequences. The Appellate Division has been (thus far) very lax in strictly enforcing this 14 day period. Accordingly, one need not worry that his appeal will be dismissed on day 15 for failure to initialize a Notice of Appeal. However, rest assured that when it comes time to perfect the appeal, the appellant will be unable to do so if this initial process has not been completed and a case number has not been obtained and served upon the other side. Accordingly, as a matter of self-interest, it is incumbent upon every appellant to initialize his Notice of Appeal as soon as possible (ideally within 14 days of the Notice of Appeal having been filed in the Supreme Court), obtain the Appellate Division Case Number and serve it on the other side. That way, when it is time to perfect the appeal, appellant will have complied with all preliminary requirements and not face the prospect of being unable to perfect the appeal in a timely manner.

Please note that notwithstanding the foregoing, it is certainly possible that at some point the Appellate Division will strictly enforce this 14 day requirement. Don’t fall victim to he who hesitates is lost-initialize your Notice of Appeal post haste.

WHAT AM I REQUIRED TO DO IF I AM SERVED WITH A NOTIFICATION OF CASE NUMBER

AND OTHER PERTINENT INFORMATION?

PAUL LAMAR | Executive Vice President of Appellate Services | PHP

If you are a Cross-Appellant on the appeal and have not done so then you will have to upload your Notice of Appeal or Cross-Appeal along with the Informational Statement and the Order or Judgment being appealed from. You can use your NYSCEF credentials and upload to the Appellate Division in which the appeal is being perfected.

As a Respondent on the appeal the above steps are the same with the exception that there is no need for the Respondent to upload a Notice of Appeal and/or a Notice of Cross-Appeal. If 20 days have passed since the Notification of Case Number was served, the Appellant is not required to serve hard copies to the other parties. It is imperative to respond to the Notification of Case Number as soon as possible, because if you are not registered you will not be aware of when the Record on Appeal and Appellant’s Brief have been e-filed on the NYSCEF system, and this may prevent you from filing a timely Cross-Appellant and/or Respondent Brief.

To sum it up, the Appellant and/or Co-Appellants are responsible for the initial upload of the Notice of Appeal and Informational Statement. Once the court has assigned the NYSCEF Case number to the appeal, the Appellant is then responsible for serving a hard copy of the Notification of Case Number to the other parties and then upload the Notification of Case Number along with the Affidavit of Service.

FAQ: E-FILING & NYSCEF

Q: When I register an appeal with NYSCEF, can I register multiple attorneys from the same firm?

A: Yes, multiple attorneys may be listed as counsel for a party. An attorney may also represent multiple parties in one case.

Q: What is an e-fiing agent?

A: An e-filing agent is anyone who an attorney authorizes to e-file on his or her behalf.

Q: Do other manners of relief need to be requested through NYSCEF or hard copy or both?

A: Once registered, all documents must be filed via NYSCEF.

Q: Once registered, what are the requirements when e-filing motions on NYSCEF?

A: Motions must be one pdf file, text searchable and bookmarked to be e-filed on NYSCEF or through any Court’s portal at the appellate level.

Q: Will The Appellate Division First and Second Departments permit a motion to be e-filed? Are Hard Copies Required?

A: The Appellate Division First and Second Departments require motions to be e-filed in all matters that are considered for electronic filing. One hard copy is expected two business days after e-filing.

A LOOK BACK: 2020 E-FILING IN REVIEW