The Appellate Process at the New York State Appellate Division Perfecting Civil Appeals in the New...

The Appellate Process at the New York State Appellate Division

Perfecting Civil Appeals in the New York State Appellate Division, First, Second, Third and Fourth Departments

10 East 39th Street, 7th Floor, New York, NY 10016Tel: 212.719.0990 | www.phpny.com

Presented by: Eric J. Kuperman, Esq. and John McGorty

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I. Understand How and When to File a Notice of Appeal

II. Know What to Include in the Record on Appeal

III. Grasp What to Include in the Appellate Brief

IV. Present Oral Argument

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Learning Objectives

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I. Service with Notice of Entrya. 30 days from date the Order is served

with Notice of Entry by handb. 35 days from date the Order is served

with Notice of Entry by mailII. Jurisdictional requirementIII. Timing for Filing Notice of Cross-Appeal – CPLR § 5513(c) The Greater of:

a. 10 days from date of primary Notice of Appealb. 30 days from Order with Notice of Entry


Timing for Filing Notice of Appeal – CPLR § 5513(a)

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AD1

a. Pre-Argument Statement

b. Notice of Appealc. Order appealing from

w/ Notice of Entryd. Original Affidavit of

Servicee. $65 check payable to

County Clerk


AD2

a. RADI formb. Notice of Appealc. Order appealing from



County Clerk

Filing Notice of Appeal


New York State Counties (AD1 & AD2)

First Department

Second Department

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Pre-Argument Statement

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RADI Form

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RADI Form

AD3

a. Pre-Calendar Statement

b. Notice of Appealc. Order appealing from



County Clerk


AD4

a. Notice of Appealb. Order appealing from w/

Notice of Entryc. Original Affidavit of

Serviced. $65 check payable to

County Clerk

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Filing Notice of Appeal


New York State Counties (AD3 & AD4)

Fourth Department

Third Department

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Pre-Calendar Statement

I. Appellate Division, First Departmenta. Term Calendar

• Filing dates falling within 9 months of date on Notice of Appeal (§600.11 (a)(3))

• Request for Argument Forms; stipulations to adjourn

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Time to Perfect Appeal

2015Calendar

I. Appellate Division, First Department (cont’d)b. 30-day rule (§600.5(d))

• Not followed• Respondent moves for relief

• Conditional grant of the relief• Ordered on for specific term

c. Multiple appellants• “First in time” perfects first• Must consult otherwise• Co-Appellants: must perfect for the same Term (though

not necessarily on the same day)

II. Appellate Division, Second Departmenta. 6 months from date on Notice of Appeal (§670.8(e) (1))b. Multiple appellants–race to perfect

• Co-Appellants: must perfect on the same day PrintingHouse Press | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com 11


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III. Appellate Division, Third Departmenta. 9 months from date on Notice of Appeal (§800.12)b. 60-day rule (§800.9(a))


• Conditional grant of the relief• Ordered to file by specific date

c. Multiple appellants–race to perfect• Co-Appellants: must consolidate appeal and perfect on

the same day

IV. Appellate Division, Fourth Departmentd. 9 months from date on Notice of Appeal (§1000.2(b))e. 60-day rule (§1000.2(b))


• Conditional grant of the relief• Ordered to file by specific date

f. Multiple appellants–race to perfect• Co-Appellants: must consolidate appeal and perfect on

the same day

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Hand DeliveryOvernight Delivery

Regular Mail Delivery

Respondent Brief

30 Days from date served



Reply Brief 10 Days from date served



V. Appellate Division, Second, Third and Fourth Departments



I. What to Includea. Trial

• Pleadings• Transcripts and exhibits admitted into evidence (transcripts

must be settled)• Notice(s) of Appeal• Order or Judgment being appealed• Post-Trial Motions

b. Motion• Motion papers for and against• All attached affirmations and exhibits• Replies• Notice(s) of Appeal• Order or Judgment being appealed

c. Memoranda of Lawd. Pre-Argument Statement (AD1) / 5531 Statement (AD2, AD3 &

AD4)e. 2105 Certification (AD1, AD2 & AD3) / 5532 Stipulation (AD4)

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Record on Appeal

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5531 Statement

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2105 Certification

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5532 Stipulation

I. What to Includea. What appellant plans to cite tob. What appellant can reasonably anticipate

respondent will cite toc. Must make good faith effort

II. Subpoena Lower Court File (AD1 & AD2)

III. File one copy of Record (AD3 & AD4)


Appendix


I. Color Documentsa. AD1, AD3 & AD4

• May use black and white

b. AD2• If in color in the lower court, must be in color in

Record/Appendix unless unavailable

II. Illegible Documentsc. AD1

• May be retyped• Include behind illegible document clearly marked as

retyped

d. AD2, AD3 & AD4• May not be retyped; document must be included exactly

as it appeared in the lower court19

Record on Appeal/Appendix

III. How to handle documents outside the scope of the Record/Appendix

a. Motion to enlarge scope of Record/Appendix• Must be necessary to determination• Rarely granted

b. Discuss in Brief• Footnote with explanation (not allowed in

AD4)• Bring copies to oral argument


Record on Appeal/Appendix


I. If appellant omitted toomany documents in Record on Appeal or Appendix

II. If Record on Appeal or Appendix is incompletea. If just a few pages missing, “tip-in”

methodb. Supplemental Record

• Stipulation or Motion

c. Respondent Appendix21

Motion to Strike

I. What to Includea. Table of Contentsb. Table of Authorities (only AD1)c. Preliminary Statementd. Questions Presentede. Statement of Factsf. Argumentg. Conclusionh. Printing Specifications Statement (AD1) / Certificate of

Compliance (AD2)i. No page certification required for AD3 and AD4

II. Appellant, Cross-Appellant and Co-Appellant Briefsa. Pre-Argument Statement – Appellate Division, 1st Departmentb. 5531 Statement – Appellate Division, 2nd Departmentc. No 5531 Statement required – Appellate Division, 3rd and 4th

DepartmentsPrintingHouse Press | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com 22

Brief – Appellate Division, 1st, 2nd, 3rd, and 4th Departments

III. Formattinga. Mono-spaced v. Proportionally Spaced font,

examples of which are:• 14pt Times Roman or 12pt Courier New

b. Footnotes no smaller than 12pt Times Roman or 10pt Courier New• No footnotes allowed in AD4

c. Double spacedd. 1 inch margins all arounde. No bold or FULLY CAPITALIZED words except in

point headingsf. Underline and Italics acceptable if used sparinglyg. Covers must be color coded in AD4

• Appellant Brief – Blue Cover• Respondent Brief – Red Cover• Reply Brief – Gray Cover 23

Brief – Appellate Division, 1st, 2nd, 3rd and 4th Departments

IV. Length and Certification Requirementsa. AD1• Appellant/Respondent Brief

• 14,000 words• Must not exceed 70 pages• Printing Specifications Statement

• Reply Brief• 7,000 words• Must not exceed 35 pages• Printing Specifications Statement


Brief – Appellate Division, First Department


Brief – Appellate Division, First Department

V. Length and Certification Requirementsa. AD2• Appellant/Respondent Brief

• 14,000 words• Must not exceed 70 pages• Certificate of Compliance

• Reply Brief• 7,000 words• Must not exceed 35 pages• Certificate of Compliance


Brief – Appellate Division, Second Department

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Brief – Appellate Division, Second Department

VI. Length and Certification Requirementsa. AD3• Appellant Brief

• Must not exceed 70 pages• No Certification Required

• Respondent Brief• Must not exceed 35 pages• No Certification Required

• Reply Brief• Must not exceed 15 pages• No Certification Required


Brief – Appellate Division, Third Department

VII. Length and Certification Requirementsa. AD4• Appellant/Respondent Brief

• Must not exceed 70 pages• No Certification Required

• Reply Brief• Must not exceed 35 pages• No Certification Required


Brief – Appellate Division, Fourth Department

I. AD1a. Paper service and filing

• File 8, serve 2b. Electronic service and filing

• Over 10MB on a CD• Under 10MB by e-mail

c. $315 filing fee payable to Appellate Division

II. AD2a. Paper service and filing

• File 9, serve 2b. $315 filing fee payable to Appellate Division


Perfecting the Appeal

III. AD3a. Paper service and filing

• Record: File 10, serve 1• Appendix: File 10, serve 2 (and File/Serve 1 copy of

Record)• Brief: File 10, serve 2

b. $315 filing fee payable to Appellate Division

IV. AD4c. Paper service and filing

• Record: File 11, serve 2• Appendix: File 10, serve 2 (and File/Serve 1 copy of

Record)• Brief: File 11, serve 2

d. $315 filing fee payable to Appellate DivisionPrintingHouse Press | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com 31

Perfecting the Appeal

I. AD1a. “To be argued by” on brief cover plus Request for

Oral Argument Formb. Request for Oral Argument Form submitted no later

than the day after Respondent’s Briefs are duec. If two parties, then the standard is 15 minutes

each. If multiple parties, then the break down should be itemized.

II. AD2, AD3 & AD4a. “To be argued by” on brief coverb. Time requested on brief cover


Oral Argument

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Request for Oral Argument Form

I. AD1 – allowed requestsa. Perfecting the appeal

• Only by Motion

b. Respondent’s Briefs and Reply Briefs• Stipulation• Emergency Application

II. AD2 – allowed requestsa. Letterb. Motion


Enlargements of Time

III. AD3 – allowed requestsa. Perfecting the appeal

• Only by Motion

b. Respondent’s Briefs and Reply Briefs• Phone Call to Court Clerk (30 Days Requested)• Stipulation (more than 30 Days Requested)

IV. AD4 – allowed requestc. Motion


Enlargements of Time


I. Determining appellate designation

II. Briefing schedule

III. How to navigate Terms in AD1 with multiple appellants

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Multiple Appellants

I. As of rightII. Motion for leave to the Court of Appeals filed in the

Appellate Divisiona. AD1, AD2, AD3 & AD4

• Timing – Motion to reargue/Motion for leave in the alternative

b. What to include

III. Motion for leave to the Court of Appeals filed in the Court of Appeals

a. Timingb. What to include


Appeal to the Court of Appeals

I. Appeal as of righta. Notice of Appeal in court of original instance

with Notice of Entry, filing fee and Affidavit of Service

b. Preliminary Appeal Statementc. Scheduling Order from New York State Court

of Appealsd. Record/Appendix & Brief

II. Motion for Leave Granted - All the same except for filing a Notice of Appeal


New York State Court of Appeals

PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016Tel: 212.719.0990 | Fax: 212.398.9253 | www.phpny.com

Eric J. Kuperman, Esq.Vice President of SalesTel: [email protected]

John McGortySenior Appellate ConsultantTel: [email protected]

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