PRESENTED BY: Sponsored by:
The Appellate Process at the New York State Appellate Division Perfecting Civil Appeals in the New York State Appellate Division, First and Second Departments Presented by: Eric J. Kuperman Esq., John McGorty and Stephen Preziosi, Esq. 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 | www.phpny.com
Learning Objectives 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 3 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Timing for Filing Notice of Appeal – CPLR § 5513(a) I. Service with Notice of Entry a. 30 days from date the Order is served with Notice of Entry by hand b. 35 days from date the Order is served with Notice of Entry by mail II. Jurisdictional requirement III. Timing for Filing Notice of Cross-Appeal – CPLR § 5513(c) The Greater of: a. 10 days from date of primary Notice of Appeal b. 30 days from Order with Notice of Entry 4 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Filing Notice of Appeal AD1 AD2 a. Pre-Argument Statement a. RADI form b. Notice of Appeal b. Notice of Appeal c. Order appealing from w/ c. Order appealing from w/ Notice of Entry Notice of Entry d. Original Affidavit of Service d. Original Affidavit of Service e. $65 check payable to County e. $65 check payable to County Clerk Clerk 5 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
New York State Counties Second Department First Department PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Pre-Argument Statement 5
RADI Form 6
RADI Form 7
Time to Perfect Appeal I. Appellate Division, First Department a. 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 • 8
Time to Perfect Appeal 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 Department a. 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 • 9 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Time to Perfect Appeal II. Appellate Division, Second Department (cont’d) Overnight Regular Mail Hand Delivery Delivery Delivery Re Respondent Brief 30 Days from 31 Days from 35 Days from date served date served date served Reply Brief Re 10 Days from 11 Days from 15 Days from date served date served date served 10 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Record on Appeal I. What to Include a. 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 Law d. Pre-Argument Statement (AD1) / 5531 Statement (AD2) e. 2105 Certification (AD1 & AD2) 11 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
5531 Statement 12
2105 Certification 13
Appendix I. What to Include a. What appellant plans to cite to b. What appellant can reasonably anticipate respondent will cite to c. Must make good faith effort II. Subpoena Lower Court File (AD1 & AD2) 14 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Record on Appeal/Appendix I. Color Documents a. AD1 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 Documents a. AD1 May be retyped • Include behind illegible document clearly marked as retyped • b. AD2 May not be retyped; document must be included exactly as it appeared in • the lower court 15 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
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 • Bring copies to oral argument • 16 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Motion to Strike I. If appellant omitted too many documents in Record on Appeal or Appendix II. If Record on Appeal or Appendix is incomplete a. If just a few pages missing, “tip-in” method b. Supplemental Record Stipulation or Motion • c. Respondent Appendix 17 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Brief – Appellate Division, 1 st and 2 nd Departments I. What to Include a. Table of Contents b. Table of Authorities (only AD1) c. Preliminary Statement d. Questions Presented e. Statement of Facts f. Argument g. Conclusion h. Printing Specifications Statement (AD1) / Certificate of Compliance (AD2) II. Appellant, Cross-Appellant and Co-Appellant Briefs Pre-Argument Statement – Appellate Division, 1 st Department a. 5531 Statement – Appellate Division, 2 nd Department b. 18 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Brief – Appellate Division, 1 st and 2 nd Departments III. Formatting a. Mono-spaced v. Proportionally Spaced font, examples of which are: 12pt Courier New or 14pt Times New Roman • b. Footnotes no smaller than 10pt Courier New or 12pt Times New Roman c. Double spaced d. 1 inch margins all around e. No bo bold or FULLY CAPITALIZED words except in point headings f. Underline and Italics acceptable if used sparingly 19
Brief – Appellate Division, First Department IV. Length and Certification Requirements a. 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 • 20 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Brief – Appellate Division, First Department 21 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Brief – Appellate Division, Second Department V. Length and Certification Requirements a. 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 • 22 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Brief – Appellate Division, Second Department 23
Perfecting the Appeal I. Appellate Division, First Department a. Paper service and filing File 8, serve 2 • b. Electronic service and filing Over 10MB on a CD • Under 10MB by e-mail • c. $315 filing fee payable to Appellate Division II. Appellate Division, Second Department a. Paper service and filing File 9, serve 2 • b. $315 filing fee payable to Appellate Division 24 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Oral Argument I. Appellate Division, First Department a. “To be argued by” on brief cover plus Request for Oral Argument Form b. Request for Oral Argument Form submitted no later than the day after Respondent’s Briefs are due c. If two parties, then the standard is 15 minutes each. If multiple parties, then the break down should be itemized. II. Appellate Division, Second Department a. “To be argued by” on brief cover b. Time requested on brief cover 25 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
Request for Oral Argument Form 26
Top 16 List For More Effective Brief Writing 1. Tell the judges what you want. 2. Persuade, Persuade, Persuade: in every part of the brief – facts, argument, etc. 3. Put your best foot forward: strongest arguments go first. 4. Elements of Style: spelling counts, use spell check, proof read, punctuation errors not acceptable. 5. Use a format that is easy to follow: IRAC – CRAC – ICRAC. 29 PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com
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