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Convincing the court to hear your appeal in the New York State Court of Appeals is an arduous, challenging task. Except in limited circumstances, there is no guaranteed right of appeal to this court. To be heard, an application generally needs to be made by means of a “Motion for Leave to Appeal” addressed to the New York State Court of Appeals. Such applications are often decided within a relatively brief time after the return date – about 6 weeks or so. Chances of such an application being granted are very slim, and to improve one’s chances, it is crucial to fully understand what appeals to this Court. Make certain to highlight a misapplication of the law or some other injustice that has very broad statewide implications beyond your individual case to capture the attention of the Justices. This Court only hears a sparse number of appeals and is very selective in granting appeal applications. Once permission to appeal is granted, it is mandatory to follow a digital filing mandate, as well as the need to file bound paper copies of the Record and Briefs. Digital requirements for the Court of Appeals are different than the mandates for the Appellate Term, First Department, so care must be taken to understand the correct procedure.

The First Department is the only Appellate Department that necessitates digital filing of Records and Briefs. This Court hears appeals with a specific monthly calendar. At the time of the filing of the Record and Brief, the Note of Issue designates the month that the case will be considered by the Court. With limited exceptions, there is assurance that an appeal will be heard, whether by Oral Argument or Submission, on the month designated in the Note of Issue. In the First Department, deadlines are noted on the calendar for each part of the schedule, from the Appellant’s Brief to the Respondent’s Brief and the Appellant’s Reply Brief. The Court publishes the actual date the appeal is scheduled on-line several weeks before the start of the month in which a case is to be considered, so that litigants can make the arrangements necessary to appear.

The busiest of the Appellate Courts, the Appellate Division, Second Department, located in Brooklyn, has significantly more Judges assigned to its bench in order to compensate for the heavy volume of appeals, largest among all the Appellate Courts. As might be expected, the large geographic area covered by the Second Department, stretching from Rockland, Putnam, Westchester and Dutchess Counties to Nassau, Suffolk, Kings (Brooklyn), Queens and Richmond (Staten Island) Counties, is the reason why there are more cases to consider on appeals. With only New York County and Bronx County under its jurisdiction, the First Department, though busy with a large caseload, does not have the sheer number of cases as the Second Department. A picturesque Court building, the Second Department at 45 Monroe Place in Brooklyn is a magnificent freestanding edifice in a quiet section of the borough with some impressive townhouses nearby. Our court liaison staff is at the court on an almost a daily basis and are on very familiar terms with all the court clerks. Be advised that on street parking can be difficult to obtain, and to schedule accordingly.

Based in Albany, New York, the Third Department hears a substantial number of Article 78 proceedings against a host of New York State agencies that are based in the Capitol region of our state. This Court is housed in an office building in the downtown business district of Albany, and is a short distance from both the New York State Capitol and the New York State Court of Appeals, where the bureaucracy of governance takes place. Procedurally, this court has a 60-Day Rule requiring that an Appellant serve and file the Record on Appeal and the Appellant’s Brief within 60 days of the Notice of Appeal. In practice, however, this 60-Day Rule is one of the requirements that is “honored more in its breach than its observance.” Generally, however, as long as appeals are perfected within the outside limit of 9 months of the Notice of Appeal, they are considered timely. There is a procedure to follow if an Appellant is subject to a dismissal motion by an opponent that usually preserves the right to perfect such appeal. In addition, the Third Department only dictates that one copy of the Record on Appeal be served on the opposing parties rather than the two copies that are served on the opposition in the other three Appellate Departments.

Located in Rochester, New York, the Fourth Department of the Appellate Division for New York State handles the Western portion of upstate New York, and has unique rules that, in many ways, set it apart from the other three Appellate Departments. One of the visual differences is that there are specific colors for the covers of the Records and Briefs, mandated by the Fourth Department. The Record cover is required to be white and the Appellant’s or Petitioner’s Brief cover is blue; red for a Respondent’s Brief and gray for a Reply Brief. If there is a Sur-Reply Brief it is yellow, and green for an Amicus Brief. Agreement among counsel on the contents of the Record on Appeal is required either by stipulation or by a trial court order settling the Record. Appellants are strongly encouraged to start the process of compiling and agreeing upon the Record on Appeal early, and to avoid waiting until the last minute to negotiate that process. Even though an Appendix is acceptable, this Court cautions that an inadequate Appendix may result in anything from outright dismissal of an appeal, to an order demanding a whole new Record on Appeal, or some other relief in between. There is also a 60-Day Rule, mandating the perfection of an appeal within 60 days after the Notice of Appeal is served on the Respondent(s). As with the Third Department, more time will be settled by way of a conditional dismissal as long as an Appellant properly answers any Motion seeking dismissal of an appeal for failure to comply with the 60-Day Rule.

Celebrated as arguably the world’s most famous set of courthouse steps in many movie scenes as well as TV shows, from the famous Carlito’s Way to The Godfather, the Courthouse housing the Appellate Term, 1st Department, is a grandiose visual testament to the pursuit of justice. Parking in the area without intimate local knowledge of the Courthouse itself is difficult, and since it sits in the heart of that slice of Manhattan that is battened down with security barriers and a formidable security presence inside and out of each building, this neighborhood defines the twenty-first century reality of our times. All manner of Federal, State and local government courts, agencies and branches of law enforcement populate this section known as Foley Square. To perfect an appeal for the Appellate Term, First Department, it is essential to go to the lower Court Clerk’s Office in Manhattan or the Bronx to process a Clerk’s Return. The Clerk’s Return involves comparing the printed Record on Appeal to the actual lower Court file with the appeal’s clerk, who then endorses the file for transmittal to the Appellate Term. This procedure may take some time. Usually, only one clerk handles the Clerk’s Return, which limits the load of work that can be accomplished. Unlike the Appellate Term for the Second Department, a Record on Appeal usually has to be filed with the Appellant’s Brief in the Appellate Term, First Department.

The Appellate Term, Second Department, is located in a downtown Brooklyn office building that houses various administrative agencies and government headquarters. Since many of the Appellants are “pro se,” the courts are much more actively involved in the entire appeals process than is the case with the Appellate Divisions. For example, Transcripts of Hearing Minutes are settled pursuant to Sec. 1704 of the relevant Court Act, rather than pursuant to CPLR 5525. The discrepancy is significant since the lower Court has to be involved in the Transcript Settlement, and a hearing has to be set before the lower Court Judge as part of the Settlement of such hearing minutes. Presumably, this is to assure that the appeal record is accurate. For attorneys, this type of interaction can slow the usual process of handling an appeal and may seem to add an apparently superfluous step. Before an appeal can be perfected, the entire lower Court file with the settled Transcript of any Hearings has to be delivered to the Appellate Term in Brooklyn. At times, it may even be exasperating, since some of the lower courts in smaller jurisdictions may not be as knowledgeable on appeals or as cooperative with assistance on the appeals process. It is of the utmost importance that you maintain your patience. The Appellate Term, Second Department, does not allow the filing of Records on Appeal, so only the Briefs are permitted.

As one of the first courts in the country to impose a digital filing mandate, the U.S. Court of Appeals for the 2nd Circuit requires that each party upload all documents on an appeal to the Court’s website. As with the New York State Courts, there is also the need to file bound paper copies, the Joint Appendix, as well as Briefs. To upload documents on Pacer (ECF), each attorney has an single personal ID that is used to log on to the 2nd Circuit’s website. Unlike most of the New York State Courts, the parties are obliged to consult and try to agree upon the documents comprising the Joint Appendix. Generally, this Court stresses that minimal paperwork is preferred over storing everything into the Joint Appendix. Shortly after filing the Notice of Appeal in the 2nd Circuit, the Clerk’s Office transmits a “Scheduling Order” that details the deadlines for each step of the appeal. Precise dates are set for the completion of the Joint Appendix, the Briefs, and anticipated time periods that attorneys are to be available for Oral Argument.

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