Timeliness Matters When Serving and Filing Your Appeal

Timeliness Matters When Serving and Filing Your Appeal

Timeliness Matters When Serving and Filing Your Appeal by Eric Larke

{2:01 minutes to read} There are differences with respect to the process of service of papers between the Appellate Division, First Department and the Appellate Division, Second Department. One of the major differences is how each department regards timeliness when considering the service and filing of appellate papers.

  • In the First Department, the rules require that the service parties are in actual possession of the appellate documents at the time of filing. If the papers were served personally on the day of filing, the court clerk would find this sufficient timing. If the papers were served by Federal Express or any overnight mail service the day prior to filing, this would be sufficient. And, if the papers were served by regular mail, this must have been accomplished at least 5 days prior to filing. The court must be able to ascertain by the Affidavit of Service that the papers will, in fact, be in the party’s possession upon filing.

  • In the Second Department, the court permits service of the papers by mail on the day that they are due. It does not require that the actual papers are in the party’s possession at the time of filing. However, the clerk will add additional time for the response by determining the amount of time the mailing took. So, if one serves the appellate papers by regular mail, five additional days will be added to the response time. If the papers are served by overnight mail, one additional day will be given to the response time, and if the papers are served personally, no additional days will be given to the response time.

Keep in mind that the response time in the Second Department is 30 days (10 days for the Reply Brief), whereas in the First Department, the response time is based upon the term calendar.

If you have any questions regarding this timing difference between the departments, please contact Appellate Innovations here.

Eric R. Larke

3 Barker Avenue, 2nd Floor
White Plains, NY 10601
Phone: (914) 948-2240

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