Supreme Court of the State of New York Appellate Division Fourth Department: Multiple appellants or cross-appellants? How does this change the procedure? (Part I)

Robert C. Brucato, Esq. Of all the various rules that come into play at the Appellate Division Fourth Department, more questions are probably raised to me in the area of multiple appellants and cross-appellants than in any other provision of the rules. The Fourth Department handles appeals with multiple appellants and cross-appellants in a different manner than any of the other three Departments of the New York State Appellate Division. There are different ways for attorneys to proceed which only make it more complicated. Factor in colored covers for each type of brief and the confusion can be quite significant.

Consolidating appeals
When multiple parties file notices of appeal, the Court will allow appellants to combine their notices of appeal in one record and consolidate the appeals. Pursuant to Rule 1000.4 (b), “When two or more parties take an appeal from a single order or judgment, the appeals may be consolidated on motion pursuant to 22 NYCRR 1000.13 or on stipulation of the parties or their attorneys.” Simply including multiple notices of appeal in the record on appeal and then having all parties stipulate to the record on appeal does not satisfy the Court’s requirements. There either needs to be a motion made to consolidate or a stipulation agreeing that the appeals are consolidated. This stipulation can be separate from a stipulation certifying the record on appeal (pursuant to CPLR § 5532) or it can be combined with the statement, in which case the consolidated language will be incorporated into the stipulation. A stipulation consolidating appeals must be signed by the parties to the appeals or their attorneys. There must be language designating the party bearing primary responsibility for filing the record. This stipulation is either bound into the record or submitted separately to the Court and should contain original signatures.

Timing for perfecting an appeal
In many cases, but not always, the party who filed their notice of appeal first, takes the lead in preparing the appeal. However, any party can choose to take that lead. One potential pitfall for attorneys, who do not take the lead, yet agree to consolidate the appeals, is that they are at the mercy of the “lead” appellant in determining the timing of when the appeal will be perfected. It is up to the lead appellant to file the record on appeal and barring an order from the Court, the lead appellant has nine months to perfect the appeal calculated from the date of service of the notice of appeal. For this reason, it is not unusual for multiple appellants to make separate appeals so as to remain in control of the timing of the process.

Sharing the cost of the joint record
In the Appellate Division First and Second Departments, it is required that the costs for the record on appeal be split among the parties who are jointly appealing a matter. There is no such provision at the Appellate Division Fourth Department (or for that matter at the Third Department), and it is strictly up to the attorneys to plan for how the costs of the appeal will be shared, if at all. This area can lead to acrimony among different appealing parties and is best resolved before the appeal is perfected.

Timing for an appellant's opening brief
When the lead appellant decides to perfect the appeal, unless there is an order from the Appellate Division requiring perfection at a certain date, there is no obligation for the various appellants to file their briefs at the same time. When the lead appellant files the record on appeal along with their brief, the appeal is considered perfected and the Court prefers if the other appellant(s) plan on filing their briefs at roughly the same time. Usually, this ends up being the case; however, there is no obligation to require such timing. In fact, each appellant has up until nine months from the date of service of their individual notice of appeal to perfect their appeal. This means that if the lead appellant perfects the appeal quickly, say within 60 days, another appellant, who consolidated, theoretically, could wait until their nine months is close to expiring to file their brief. Practically speaking, there are limitations. When the lead appellant perfects, the case is calendared and presumably all parties will strive to file their briefs in time for oral argument. I have certainly seen lags of months between the timing of when various appellant briefs in the same matter are filed. Certainly, this is not how the Court prefers that consolidated appeals be handled, and you risk raising the ire of the Court.

Read Part II...
In Part II of this article, we go over the color cover requirements at the Fourth Department and the alternative courses that an attorney can follow in filing their briefs as a cross-appellant-respondent. Please proceed to Part II.

Tagged: Appellate Practice, New York State Appellate Division Fourth Department, Appellate Procedure