Newcomers to appellate practice in the New York State Appellate Division, First Department should be aware of this Court’s term calendar and how the term calendar system impacts their appeals. In any given calendar year, the First Department has 10 terms for argument and submission, and there are specific deadlines by which documents must be filed in order to take part in a given term. (2015 Appellate Division, First Department Term Calendar can be found here.)
Terms: It matters when you file…
Although appellants may perfect an appeal1 any day in which the Court is open, there are strategic reasons for choosing the last filing day for a term. Most significantly, by perfecting an appeal on the last filing day, the appellant gives the respondent the fewest number of days to file his responding brief. For instance, to perfect for the September 2015 Term,2 an appellant must serve and file the necessary opening documents on or before July 13, 2015. No matter what date the appellant’s documents are filed for that term, the respondent may file his brief up until August 12, 2015. Likewise, no matter what date the respondent files his brief, the appellant may file his reply brief as late as August 21, 2015. Filing early merely gives one’s adversary extra time to prepare his or her own brief and does not accelerate proceedings in the First Department.
Up your game for the July 13th deadline
Given that the September Term is one of the busiest terms at the Appellate Division, First Department and the filing deadline has historically fallen immediately or shortly after the week of the July 4th holiday, we always advise our clients, even if they want to file on the last day of this term, to send their documents to us around mid-June. It takes 2-3 business days to prepare a proof, and we can file as quickly as the client wants; or we can hold off on filing after we have prepared the documents, keep everything in our office and file on the date the client chooses. Why not clear your desk, give yourself peace of mind, enjoy the holiday and avoid the last minute rush?
Appellants should also keep in mind that this Court requires service in accordance with the Mailbox Rule; service by mail must be effectuated five days before the last filing date for regular mail or one day before for overnight mail. Finally, the First Department requires that service and filing is done by paper and electronically. These considerations may add additional time to the preparation of appellate documents.
Requests for oral argument must be delivered to the Court no later than the day after the Court’s deadline for respondents’ briefs, per the term calendar. A single request must speak for all parties to an appeal and must comply with rule § 600.11(f).3 Failure to timely request oral argument will result in the case being deemed submitted. In general, oral arguments are scheduled during the term for which the appeal was perfected, although the Court may sua sponte adjourn an appeal to maintain its calendar.4 Calendars for oral argument are created by the Court following the submission of the respondents’ briefs and oral argument request forms, but prior to the deadline for filing reply briefs.
Extensions of Time
The Appellate Division, First Department adheres fairly rigidly to its term calendar, and disfavors extensions of time. An appellant may request additional time to perfect his appeal only by motion. Parties may, however, stipulate to up to one week’s additional time for filing of the respondent and/or reply briefs without impacting the term for which the appeal is set. Extensions of more than one week generally involve adjourning the appeal to a different term.
All in all, the First Department’s Term Calendar provides a level of certainty in practice that few other courts can match. However, because few attorneys are familiar with the rigidity of such a system, practitioners should take care to fully understand this Court’s procedural rules or seek appropriate guidance.
If you have any questions regarding an appeal in the Appellate Division, First Department, feel free to contact me directly. Counsel Press provides a full spectrum of appellate services. Our New York office focuses on rule-compliant appellate filings in the New York State Court of Appeals, New York State Appellate Division (First-Fourth Departments), New York State Appellate Term (First-Second Departments) and the US Court of Appeals for the Second Circuit. Through our local offices, we offer in-depth knowledge of rules and procedures in all state and federal appellate courts nationwide.
1To “perfect” an appeal means to file the note of issue, the appellant’s opening brief and the record on appeal or appendix.
2September Term appeals should have argument dates between September 8, 2015 and October 5, 2015.
3A sample oral argument request form may be found here.
4This happens most frequently in the September Term, during which roughly 50% of cases, particularly civil cases, are adjourned to the October Term. Criminal and family court cases are generally calendared for argument before civil cases.