FOURTH DEPARTMENT MOTION PRACTICE IVAN E. LEE, ESQ.

Transcription

1 FOURTH DEPARTMENT MOTION PRACTICE BY IVAN E. LEE, ESQ. Principle Appellate Court Attorney (Civil Motions) Appellate Division, Fourth Department Rochester

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3 FOURTH DEPARTMENT MOTION PRACTICE Submitted by Ivan E. Lee Principle Appellate Court Attorney (Civil Motions) Appellate Division, Fourth Department (585) I. MOTION PAPERS (22 NYCRR ) Persons seeking relief from this Court may do so either by submitting a formal motion on notice or by proceeding by an order to show cause (22 NYCRR ). A. Notice of Motion (Rule [a]) 1. Return Date: any Monday except a holiday (Rule [a] [1] [I]). 2. Sufficient Notice: 8 days, plus one for overnight mail, or plus 5 for regular mail (Rule [a] [2]). 3. Cross Motions: 4 days before return date, and shall be served either personally or by overnight delivery service (Rule [a] [3]). 4. Filing Papers: by 5:00 p.m. Friday preceding return date (Rule [a] [4]). Fax is acceptable when necessary to meet this deadline, if compliant papers are also sent by mail the same day (preferably by overnight delivery). 5. Proper Format (Rule [a] [5]): a. Necessary papers, especially notices of appeal, order/judgment appealed from, and proof of service of motion. b. Original and one copy required. 6. Oral argument not permitted (Rule [a] [6]). 7. $45 filing fee required (CPLR 8022 [b]), except for poor person motions. a. Payable to Appellate Division, Fourth Department

4 -2- b. Attorney check, certified check, or money order (no personal check or cash). B. Orders To Show Cause (Rule [b]): 1. Schedule with Justice hearing motions in that Judicial District that week. 2. Likely to be made returnable before full Court on Monday when Court is sitting. 3. Notice to opponent ordinarily required. 4. If Justice signs order, an original and copy of the order must be filed with our Clerk's Office, along with filing fee. 5. Filing requirements the same as for motions on notice ( [a]), except where otherwise indicated in Rule (b) and the signed order to show cause. II. SPECIFIC MOTIONS A. Dismissal For Failure to Perfect Timely: if motion opposed, conditional dismissal extension granted, ordinarily up to 60 days (Rule [e]). B. Extension of Time to Perfect: ordinarily up to 60 days (Rule [f]). C. Vacate Dismissal of Appeal: same requirements as for extension, but must also demonstrate merit (Rule [g]). D. Extension of time to file a Brief: ordinarily up to 30 days for petitioner s or respondent s brief, and 15 days for reply brief (Rule [h]). E. Briefs Amicus Curiae: as soon as possible after appeal is perfected (Rule [k]). F. Admission Pro Hac Vice: need certificate of good standing and affidavit from New York attorney (Rule [l]). G. Expedite Appeal: premature until appeal perfected (Rules [d] and [m]).

5 -3- H. Consolidation: rules permit consolidation of appeals only from orders in the same action or proceeding (Rules [n] and [b] [2]), either on motion or upon stipulation: 1. If two or more parties appeal from the same order or judgment, the parties can stipulate to consolidate the appeals; 2. If one party appeals from two or more orders or judgments, a motion to consolidate is required. I. Reargument and Leave to Appeal to Court of Appeals (Rule [p]): 1. Must move within 30 days of service of this Court's order with notice of entry, and (for leave motions) make motion returnable on Monday 8-15 days away. 2. Need not attach notice of appeal and lower court order/ judgment, but must attach Appellate Division order. 3. In criminal matters, only one application is permitted; in civil matters, successive applications can be made to this Court and the Court of Appeals. J. Other Motions: 1. Stays in Family Court Appeals: a. Application for a stay of a Family Court order pursuant to Family Court Act 1114 initially must be made by order to show cause (Rule [d] [1]), unless otherwise ordered by a Justice of the Court (Family Ct Act 1114). b. Extension of stay must be requested by formal motion on notice (Rule [d] [2]). 2. Stays in Other Civil Appeals: a. Can be by motion or order to show cause. b. CPLR 5519 allows stays of "proceedings to enforce an order": I. A trial is not a proceeding to enforce an order (Matter of White v City of Jamestown, 242 AD2d 979).

6 -4- ii. Better alternative is to seek stay from trial judge per CPLR 2201 (Rhodes v Mosher, 115 AD2d 351). c. Automatic stay for State and political subdivisions (CPLR 5519 [a]). d. Bonds, Undertakings, etc. (CPLR 5519 and CPLR art. 25): note that "automatic" stay may be available under CPLR 5519 (a) upon giving an undertaking. e. Injunctions (CPLR 5518): same standard as CPLR art Stays in Criminal Appeals (CPL ; 22 NYCRR [c] [1]): a. A stay of execution of judgment of conviction will allow an appellant to remain at liberty while his or her appeal is pending. The motion papers must demonstrate: I. an intention to perfect the appeal within a reasonable time; and ii. that the appeal has merit. b. If the appeal has not been perfected within 120 days from the date that the order granting the stay is issued, the stay automatically expires (CPL [4]), unless the stay was granted pending determination of the appeal or some other designated future date or occurrence (CPL [5]). c. Extension of a criminal stay must be sought by formal motion with affidavit stating that the necessary transcript of proceedings has been filed or ordered and, if not yet filed, the reason for the delay. 4. Order of recognizance or bail after conviction and before sentence (CPL ): may be made to a Justice of this Court if the criminal action was pending in Supreme or County Court. 5. Motions for Permission to Appeal: a. Civil appeals: I. CPLR 5704 (a): appealing from ex parte order. No appeal lies, but order (or ref usal to sign order) can be reviewed on

7 -5- motion. ii. CPLR 5703 (b): appealing from County Court order on appeal f rom justice court judgment/order. No appeal lies if justice court judgment/order was not final. iii. CPLR 5513 and CPLR 5701 (c): appealing from order that is not appealable as of right under CPLR b. Criminal appeals (Rule [I]): an order denying a CPL 440 motion is not appealable as of right; defendant may seek permission to appeal by formal motion (CPL ), within 30 days from the service of entry of the order (CPL [4] [a]). c. Family Court appeals: a non-dispositional order, other than an intermediate or final order in an abuse or neglect proceeding, may be appealed only by permission of this Court (Family Ct Act 1112 [a]). 6. Extension of time to serve or file notice of appeal: a. Civil appeals (CPLR 5520 [a]): party seeking to appeal must have done one of the two required acts before the Court can authorize the other. If not, defect is jurisdictional. b. Criminal appeals (CPL [6], ): defendant may seek permission to serve late notice of appeal if the notice of appeal was filed timely (Rule [I]). 7. Poor Person Relief (Rule ): must show indigency and merit (CPLR 1101[a]) and proof of service on County Attorney (CPLR 1101 [c]). 8. Lesser Number of Records (Rule ). 9. Strike Record/Brief (For noncompliance with Rules ). 10. Withdrawal of counsel (Rule [q]): counsel assigned by the Court may move to be relieved of assignment (People v Crawford, 71 AD2d 38; Matter of Jordan S., 179 AD2d 1091). 11. Other applications for relief (Rule [r]): may be considered by the Court if the motion papers comply with the Rules.