Judge Randall Eng, Presiding Justice, Appellate Division, Second Department, Brooklyn, NY
The Appellate Division of the Supreme Court of the State of New York came into being in 1894 during the presidency of Grover Cleveland and preceded by four years, the consolidation of the City of New York into its present five borough/county configuration. From that time to the present day, each of the four departments of the Appellate Division has maintained its own practice rules that govern the administration of those intermediate appellate courts which cover the 62 counties that comprise New York State. All of that is soon to change, for effective Sept. 17, 2018, the Appellate Division will have Statewide Practice Rules that will have applicability throughout the four judicial Departments. Those practitioners familiar with the current rules of the Second Department will find many similarities and will find as well, codification of certain practices in that court that were observed, but not formally enacted in its rules. On Sept. 17, the Statewide Rules of Practice will be applicable to all matters commenced in the Appellate Division throughout the state, including those in which a notice of appeal has been filed. The rules will be applicable to all matters pending in the court unless a showing can be made to the court that a party would be substantially prejudiced or that it would be manifestly unjust or impracticable to apply the new rules. The new Statewide Rules offer clarity in several practice areas and some of the highlights are as follows:
Rule 1250.1(e)Identifies materials which are deemed confidential by law and not available for viewing by the public and requires that applications for sealing and unsealing be made by motion upon good cause shown.
Rule 1250.4Outlines in detail what is required to obtain (d) poor person relief, (e) pro hoc vice admission, and (f) leave to file an amicus brief.
Rule 1250.10(c)Addresses the process by which a matter is dismissed, and the procedure for vacating the dismissal of an appeal or proceeding on motion.
Rule 1250.15(b) and 1250.16 (a)Requires the publication of the court’s calendars and decisions on its website.
Rule 1250.1(c)(4)Permits service by electronic mail upon consent of the parties.
Rule 1250.7(e)Permits Minuscript in a record or appendix if it was submitted to the court from which the appeal is being taken in that manner.
Rule 1250.7(c)Allows greater flexibility to the parties regarding the reproduction of exhibits in the full reproduced record.
Rule 1250.8Prescribes the form and content of briefs and contains specific requirements which have been commonly followed in practice but are now required. The email address of the attorney filing a brief must now be included and computer-generated briefs are subject to certain requirements.
Rule 1250.9(a)This rule has relaxed the filing requirement of records, briefs and appendices from an original plus eight to an original plus five. Only one copy of a brief need be served, rather than two. In addition, one digital must now be filed.
Rule 1250.9Although some appeals may be actively managed through the issuance of a scheduling order pursuant to Rule 1250.3(b), extensions of time in which to perfect an appeal or to serve and file a brief may be accomplished by stipulation, application or motion depending upon the number of requests.
The new statewide rules provide definitions that have applicability throughout New York State that include “electronic,” “electronic mean,” and makes reference to “NYSCEF,” which is the New York State Courts Electronic Filing System. These terms are integrated into those parts of the rules that deal with filing and service, and are intended to expedite the flow of business through the court. Practitioners are advised that searching for what has changed in the adoption of the statewide rules requires knowledge of the former written rules of the individual departments as well as possible unwritten rules that have been observed. An illustration of the above may be found in the new Rule 1250.15(c)(5) which concerns requests for rebuttal in oral argument: Prior to beginning argument, the appellant may orally request permission to reserve a specific number of minutes for rebuttal in the First and Third Judicial departments. The time reserved shall be subtracted from the total time assigned to the appellant . . . . The current local rules of the four departments provide as follows:
First DepartmentRule 600.11(f) Time Permitted for ArgumentSilent as to rebuttal but permitted in practice.
Second DepartmentRule 670.20 Oral ArgumentSilent as to rebuttal but NOT permitted in practice.
Third DepartmentRule 800.10 Oral ArgumentSilent as to rebuttal but permitted in practice.
Fourth DepartmentRule 1000.11(f) Oral ArgumentNo rebuttal argument is permitted.
As can be seen, by the above, discovering what has changed as to the rules governing any area of appellate practice requires comparison of the old written rules, the old unwritten practices of the individual departments and the new statewide rules. The statewide rules will also be supplemented by local rules of practice that will be implemented by each of the judicial departments. Practitioners should become familiar with the local rules, and may be alerted to their applicability in a matter by language in the statewide rules such as “…unless the court shall direct otherwise…” or “…the court may require …” Illustrations of the application of local rules may be seen in Part 670 of the rules of the courts, which pertain to the Second Department. The latest version of those rules are now organized in the same manner as the statewide rules for ease in cross-referencing. The intake form (formerly the Request for Appellate Division Intervention or “RADI”) form has been replaced by initial information statements under local rule 670.3(a). Some further notable changes to the local rules are as follows:
Rule 670.2(a)Describes the procedure by which an appeal that is pending on the court’s calendar may be withdrawn.
Rule 670.4Covers motion practice including orders to show cause, leave to file an amicus brief, and leave to appeal to the Appellate Division.
Rule 670.11Refers to criminal appeals and, among other things, provides that in an appeal in which only the legality, excessiveness or propriety of a sentence is raised, may be brought on by motion, denominated as an excessive sentence motion.
Rule 670.15Pertains to the conduct of oral argument in the Second Department and provides for, among other things, a maximum of 15 minutes for each side, the procedure for requesting an adjournment of oral argument, and the matters in which oral argument is not permitted.
Randall Eng is of counsel to Meyer, Suozzi, English & Klein. He is the former presiding justice of the Second Department.