TAKING APPEALS IN THE APPELLATE DIVISION, THIRD DEPARTMENT by ROBERT A. RAUSCH, Esq. Maynard, O'Connor, Smith & Catalinotto LLP Albany
Taking Appeals in the Appellate Division, Third Department Robert A. Rausch, Esq. Maynard, O Connor, Smith & Catalinotto, LLP 6 Tower Place Albany, New York 12203 (518) 465-3553 rausch@maynardoconnorlaw.com I. TAKING AN APPEAL TO THE APPELLATE DIVISION A. Jurisdiction of the Appellate Division 1. Orders appealable as of right CPLR 5701(a) provides that the following types of orders are appealable as of right: a. Any final or interlocutory judgment which disposes of all of the issues in the action, b. Any other order that: (i) (ii) (iii) (iv) (v) (vi) (vii) grants, refuses, continues, or modifies a provisional remedy; settles, grants, or refuses an application to resettle a transcript or statement on appeal; grants or refuses a new trial. involves some part of the merits; effects a substantial right; in effect determines the action and prevents a judgment from which an appeal may be taken; determines a statutory provision of the state to be unconstitutional.; (viii) grants a motion for leave to reargue or determines a motion for leave to renew. 2. Orders not appealable as of right CPLR 5701(b) lists the following as the only orders that are not appealable as of right: a. Orders made in a proceeding against a body or officer pursuant to Article 78;
b. Orders that require or refuse to require a more definite statement in a pleading; c. Orders that order, or refuse to order, that scandalous or prejudicial matter by stricken from a pleading. In addition to those statutorily-defined limitations, additional matters which are not appealable as of right include: a. Denials of motions to reargue b. A default Order/Judgment c. Consent Orders and stipulations d. Most interlocutory orders/pretrial evidentiary rulings An Order which merely limits the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor of permission.however, an Order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable. Vaughan v. St. Francis Hosp., 29 AD3d 1133 (3d Dept 2006). 3. Appeals by permission Appeals may still be taken to the appellate division from those nonappealable orders by permission of the judge who made that order or by a judge of the appellate division in the department to which the appeal could be taken. 4. What is appealable? CPLR 5512, entitled Appealable paper, provider that An initial appeal shall be taken from the judgment or order of the court of original instance and an appeal seeking review of an appellate determination shall be taken from the order entered in the office of the clerk of the court whose order is sought to be reviewed. Note that per 5517, an appeal shall not be affected by certain subsequent orders, such as an Amended Order of Judgment that merely clarifies the original Decision. So long as no additional substantive relief is granted or denied, no new Notice of Appeal need be filed, and the original appeal is not mooted. CPLR 5517(b) Note that oral rulings made in Chambers or off the record are not appealable unless they are transcribed. 22 NYCRR 202.12 provides that a preliminary conference may be recorded by a reporter, and that that transcript shall have the full force and effect of an Order of the Court.
5. Who may appeal? CPLR 5511 defines who may take an appeal: An aggrieved party, or a person substituted for him, may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party. He shall be designated as the appellant and the adverse party as the respondent. The Court of Appeals notes in Parochial Bus Systems v. Bd of Educ of City of New York, 60 NY2d 539 (1983), Generally, the party who has successfully obtained a judgment or order in his favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal.the major exception to this general rule, however, is that the successful party may appeal or cross-appeal from a judgment or order in his favor if he is nevertheless prejudiced because it does not grant him complete relief. This exception would include those situations in which the successful party received an award less favorable than he sought.or a judgment which denied him some substantive claim or substantial right.but where the successful party has obtained the full relief sought, he has no grounds for appeal or cross-appeal. This is so even where that party disagrees with the particular findings, rationale, or the opinion supporting the judgment or order below in his favor or where he failed to prevail on all the issues that had been raised. 6. Scope of review CPLR 5501 provides that an appeal from a final judgment brings up for review: (1) any non-final judgment or order which necessarily affects the final judgment, (2) any order denying a new trial or hearing which has not previously been reviewed by the court; (3) any ruling to which the appellant objected or had no opportunity to object, and any charge to the jury or failure to refusal to charge as requested by the appellant, to which he objected (4) any remark made by the judge to which the appellant objected; and (5) a verdict after a trial by jury as of right, when the final judgment was entered in a different amount pursuant to the respondent s stipulation on a motion to set aside the verdict as excessive or inadequate.
B. Notice of Entry Requirements Pursuant to CPLR 2220, the Order and all original papers determining a motion shall be filed in the County Clerk s Office where action is pending. It is generally the responsibility of the prevailing party to file Order and motion papers. If a party fails to file any papers required to be filed, the order may be vacated. Service of the Order with notice of entry triggers the timeframe for filing the Notice of Appeal. Note that pursuant to CPLR 5513, in order to be effective, the Notice of Entry must provide information on the date and place of filing. Simply mailing a copy of the Decision to an adversary and enclosing the timestamped copy of the Decision, without more, is insufficient to satisfy 5513 and will not trigger the deadline to appeal. Reynolds v. Dustman, 1 NY3d 559 (2003). ( Compliance with 5513(a) requires a notice of entry that refers to the appealable paper, and the date and place of its entry. ) C. The Notice of Appeal Pursuant to CPLR 5515(1), an appeal is taken simply by filing a Notice of Appeal in the office where the Order or Judgment appealed from was filed, paying the filing fee, and serving it on each party. 1. Requirements The Notice of Appeal must designate (1) the party taking the appeal, (2) the order or judgment appealed from, and (3) the court from which the appeal is taken. The Notice of Appeal should also identify the specific portions of the Order or Judgment appealed from. In some circumstances where multiple requests for relief were raised below, an appeal may be taken only from a limited portion of the Decision ( that portion of the Decision that granted defendant s motion to preclude ). Note that when taking an appeal only from a limited portion of the Decision, an appeal from only a part of an Order constitutes a waiver of the right to appeal from other parts of the Order. See: Royal v. Brooklyn Union Gas Co., 122 AD2d 132 (2d Dept 1986). When in doubt, it is best practice to simply appeal from the entire Judgment or Order. Note that once the time to file a Notice of Appeal has expired, it cannot be amended to add other parties or requests for relief.
2. Timing Pursuant to 5513, the Notice of Appeal must be filed and served within 30 days from after service of the Judgment or Order with Notice of Entry. That deadline is extended by five days if the Order and Notice of Entry was served by regular mail, and by one additional day if served by overnight mail. CPLR 5513(d), 2103(b) An adverse party that seeks to cross-appeal has ten days from service of the Notice of Appeal to file their own Notice of Appeal. CPLR 5513(c) 3. Curing errors 5520 permits the Court to cure errors made in the course of taking an appeal. If a party timely files or serves it, but neglects, through mistake or excusable neglect, to do another required act within the time limited; or if the Notice of Appeal was premature or contained an inaccurate description; the court has discretion to overlook the defect in the interests of justice and treat the appeal as valid. 4. Extensions of time to take an appeal 5514 provides limited grounds for taking an appeal or moving for permission to appeal: a. If an appeal is dismissed by the improper method, the appellant may move to appeal within 30 days; b. If the appellant s attorney dies, is suspended, or becomes physically or mentally incapacitated or otherwise disabled; c. Substitution of parties CPLR 1022 d. 5520 If an appellant either serves or files a timely notice of appeal or notice of motion for permission to appeal, but neglects through mistake or excusable neglect to do another act within the time limited, the court from or to which the appeal is taken, or the court of original jurisdiction, may grant an extension of time for curing the omission. Note that 5514 specifically provides that no extension of time shall be granted for taking an appeal or moving for an appeal except upon those grounds.
D. Cross-Appeals In situations where both parties seek to appeal from the same Judgment or Order, the plaintiff is deemed the appellant and shall serve and file the Brief and Record/Appendix first. The parties should work together to create a Joint Record on Appeal. Answering briefs shall be filed within thirty days, including any new points on the cross-appeal. The plaintiff shall file a Reply Brief within 10 days of the Respondent s Brief. The Reply Brief to the Cross-Appeal shall be filed within 10 days of the appellant s reply. CPLR 5513, 22 NYRCC 800.9(e) Note that in a case involving cross-appeals, the Third Department deems the plaintiff the appellant with the responsibility for preparing the Record on Appeal, and in assuming the costs of same. In the recent matter of Derr v. Fleming, 108 AD3d 854 (3d Dept 2013), the defendants appealed, the plaintiff subsequently cross-appealed, and the defendants took the initiative of preparing the Record on their own. When plaintiff refused to contribute toward the printing costs, the defendant moved to compel them to do so. The Third Department ultimately denied that application, noting that although the plaintiff would otherwise have been obligated to file and serve the record, because the defendants unilaterally undertook the task of preparing the Record, the plaintiff would not be compelled to share in such costs. The Court further noted that Supreme Court lacked jurisdiction to direct plaintiff to reimburse defendant for its printing expenses, as costs and disbursements are awarded in the appellate context only in the decision on appeal. E. Consolidating Appeals When there are multiple appeals in the same action, but arising out of different Orders of Judgments, they are traditionally automatically consolidated without the necessity of a motion or stipulation. Note that this process may differ in other departments. For example, the Fourth Department requires a motion to be made to consolidate separate appeals together. F. The Pre-Calendar Statement Note that the Third Department also requires a Pre-Calendar Statement to be filed with the Notice of Appeal in virtually every civil case in which a notice of appeal is filed. The original form shall be filed in the lower court and served on all parties. The specific format for the Pre-Calendar Statement may be found at 800.24-a. The Statement should contain the title of the underlying action; the full name of the parties; the name, address, phone number, etc. of counsel for each party; the county, court, and judge from which the appeal is taken; the RJI number; the specific nature of the underlying action ( automobile accident, breach of contract, etc.); whether there is another appeal or related action
pending; and a clear and concise statement of the issues to be raised on appeal and the grounds for reversal or modification to be advanced. A copy of the Decision or Judgment appealed from, as well as the Notice of Appeal, should be attached to the Pre-Calendar Statement. Note that the absence of a Pre-Calendar Statement does not appear to be a jurisdictional defect, and will not serve as the basis to dismiss an appeal as untimely or incomplete. However, should you fail to serve the Pre-Calendar Statement, the Appellate Division Clerks Office will likely advise you of this deficiency and request that it be corrected. Note that this statement is required only in the 3 rd and 1 st Departments. A separate Request for Appellate Division Intervention form is required in the 2 nd Department. 22 NYCRR 670.3(a) G. Civil Appeals Settlement Program The CASP program is established by 22 NYCRR 800.24-b. If your case is selected for this program, you will receive a notice of a conference directing the attorneys, and the parties themselves (including representatives of the defendant s insurance carrier), to attend a settlement conference. Clients and carriers are expected to attend the conference unless they are excused from the CASP program. Note that the court expects that the attorney attending the conference shall be fully familiar with the action and have authority (or be accompanied by someone with authority) to enter into binding settlement stipulations. Any party who fails to appear, or who appears without such familiarity and authority, may be subject to sanctions. If your case is not selected for inclusion in the CASP program, but you believe that a conference would be worthwhile, you may contact the CASP office and request that a conference be held. Typically, the CASP office will honor such requests. If your case is selected for the program, you should prepare a brief statement of the pertinent facts and issues of your case and your position as to why you expect to prevail on appeal.
II. MOTIONS TO DISMISS AN APPEAL A. Motions to Dismiss for Failure to Timely Perfect an Appeal In the Third Department, two different potential deadlines to perfect an appeal are running. 22 NYCRR 800.9 provides that an Appellant shall file a Brief and Record on Appeal within 60 days of service of the Notice of Appeal. However, 800.12 provides that the appeal shall be deemed abandoned if not fully perfected within 9 months of the Notice of Appeal. Although 9 months should be viewed as the outside deadline to perfect the appeal, there may be compelling reasons to expect the Appellant to perfect the appeal earlier. Under those circumstances, 800.9(d) provides that upon the Appellant s failure to perfect the appeal within sixty days, the Respondent can move to dismiss for lack of prosecution. In practice, you may expect that the motion will be granted if no opposition is filed; in contrast, if opposition to the motion is served, the court will likely grant an extension of time to perfect the appeal. In determining whether to make such a motion, consideration should be given to its merits, whether the appellant will demonstrate a reasonable excuse, the timeframe for a Decision on the motion, and strategic issues is it best to compel an earlier or appeal, or simply allow the appeal to be abandoned? In contrast, pursuant to 800.12, the appeal will be deemed abandoned if it is not perfected within 9 months of the filing of the Notice of Appeal. The nonappealing party need not make any formal application for that relief. Absent an extension, any attempts to file the appeal beyond that 9-month period will be automatically rejected by the Clerk s Office. In order for an appeal to be accepted beyond that nine-month period, the appellant must move for leave to file a late appeal, and must demonstrate both a reasonable excuse for the delay and facts showing merit to the appeal. Poneti v. Regan, 99 AD2d 642 (3d Dept 1984). In contrast to the motion to dismiss under 800.9(d), the court will consider excuse and merit, so it is imperative to raise such objections in opposition to the motion. Note that motions in the Appellate Division are returnable on Mondays and are generally without oral argument.
III. SCHEDULING OF APPEAL No formal separate request for oral argument is required. When filing the Brief, the appellant may request oral argument simply by noting, on the cover page of the Brief, that oral argument is requested, and identifying the person who will be arguing the appeal and the time sought for appeal. Should the Appellant decline to request oral argument, the Respondent may do so in the same manner. Under most circumstances, requests for oral argument will be granted. (Note that oral argument will not be allowed in appeals from WC Board, Unemployment Insurance Board, judgments of conviction where only the sentence is at issue, and Article 78 proceedings where the only issue is whether there was substantial evidence to support the challenged determination See: 800.10(a)(1 4) Once the appeal is perfected and Briefs filed by both Appellant and Respondent the court will issue a Scheduling Memorandum advising of the term in which the appeal will be heard. The Court will also issue a Notice advising of the dates during the term when the argument may be heard. Any potential conflicts with those dates should immediately be brought to the court s attention. Approximately six weeks before oral argument, the court will issue the Day Calendar, establishing the specific date for argument, along with a form requesting that you acknowledge your receipt of the calendar. Once the final Day Calendar assignment is made, if any conflicts have developed, you must immediately advise the court and request that it be rescheduled. Argument will not be rescheduled within fourteen days of the commencement of the term. Within one week of the oral argument date, you may check the calendar available online to determine the amount of time allotted for oral argument, as well as the panel of judges assigned to your case. Decisions are typically issued approximately sixty days from oral argument. Decisions are issued on Thursdays and are traditionally available on the court s website after 12:00 noon. Decisions will be entered by the court on the date that it is issued and will specifically state the date that it has been entered by the Court. That Decision should then be served on the adversary to trigger their time to appeal, or file a motion for leave to appeal, to the Court of Appeals.