27 Oct Submitting Papers to the AD2 — 3 Problems and How to Fix Them
(4 minutes to read) Today, we are discussing issues that appellate practitioners experience at the Appellate Division when submitting papers, and the actions we recommend to mitigate any filing delays. Over the last 18 years, the Appellate Innovations team has filed thousands of appeals with the Appellate Division, Second Department (AD2). Outlined below are three areas of concern that arise from time to time and our suggested solutions to resolve these problems.
You have recently filed your notice of appeal, yet the Second Department hasn’t issued your assigned docket number, which may result in rejection of your appeal by the Intake Clerk.
We have found that if there is a delay issuing a Second Department docket number and you must perfect your appeal as soon as possible, you may present a file-stamped copy of your notice of appeal to the Intake Clerk and upon issuance, the clerk may issue a docket number on the spot. It can be difficult to sit back and wait for the docket number to be assigned especially when perfecting your appeal quickly is of strategic advantage. We recommend this approach to speed up the process.
Certain documents reproduced in your record are of poor quality or legibility.
The Clerk of the Court will review your documents carefully upon receipt, and if they determine that a document doesn’t meet their legibility or quality standards, they will red flag the document in question and bring it to your attention upon completion of their review. Absent an explanation in writing, the clerk in all likelihood will reject your submission and request that you submit suitable quality, legible originals. We recommend a careful review of your submission, and if applicable, the drafting of a letter regarding any poor quality originals, indicating that these are the best copies available and are representative of the copies now on file with the Court. Our experience shows that the clerk will accept your papers on the basis that better quality originals do not exist.
Presenting an Appendix for filing when the original record has yet to be received by the Clerk’s office.
This situation does happen from time to time. We advise our clients to subpoena the record well in advance so that it is available to the clerks upon filing of their Appendix. However, if you’re expediting the process and you want to file an Appendix while the record is being transferred, you can present a copy of the subpoena presented to the lower court clerk directly to the Appellate Division clerk. The clerk will, in turn, order that subpoena, and then, when you file your Appendix, you would submit a copy of the so ordered subpoena showing in good faith that you’ve taken the necessary steps to transfer the original record. We have found that by following this advice, the clerk will accept your appendix for filing pending receipt of the lower court record.
We hope these solutions are helpful. Should you encounter any of these problems, our staff is available to assist you at any time, just give us a call.
Eric R. Larke
3 Barker Avenue, 2nd Floor
White Plains, NY 10601
Phone: (914) 948-2240