New York Appellate Practice: How Does a Motion for Reargument Affect My Appeal? Common Pitfalls to Identify, Avoid or Escape in the State Appellate Courts

Bill White, Esq. Often, an appellate practitioner must contend with a motion for reargument made in the lower court and its effects on the appellate process. Such a motion can complicate an otherwise straightforward appeal. Fortunately, however, most complexities can be resolved comfortably by keeping several key principles in mind.

No appeal lies from the denial of reargument
If the court’s order denies reargument and adheres to the prior, underlying order, with no discussion, the order on reargument cannot be appealed. It is, therefore, a mistake to rely solely on the reargument procedure to change an unfavorable outcome, and an appeal from the prior order should be timely noticed. Further, even if an appeal from the prior order was timely taken, one still must be careful about timing. The time for the trial court to decide a reargument motion may outstrip the time permitted to perfect an appeal from the underlying order. If it does, and the practitioner wants to wait and see whether reargument may moot an appeal, he or she must secure a timely enlargement of the time to perfect the appeal from the underlying order.

An appeal lies from an order that grants reargument but adheres to the underlying order
In these situations, the savvy practioner will often appeal the order granting reargument and affirming the prior decision and will withdraw any pending appeal from the prior order. In effect, so doing enlarges the time to perfect the issues on appeal, and because a record on reargument typically includes the entire underlying record, the record is preserved despite the withdrawal. However, for this approach to work, a reargument motion must include all of the underlying motion papers; not doing so may lead to a critical document being excluded from the reargument record. In these situations, the excluded document must come in by perfecting the appeal from the underlying order, or, if the time to do so has lapsed, by making an application to expand the record on appeal or for the court to take judicial notice of the excluded item.

An order on a mixed motion for renewal and reargument may be appealed
Such an order may be appealed as to all issues related to renewal and insofar as it grants reargument but adheres to the underlying order. The principle stated here simply reinforces and supplements the immediately preceding principle, acknowledging that an appeal may be taken from certain orders on reargument and adding that an appeal may be taken from any part of an order that concerns renewal.

The impact of a motion for reargument on a non-moving party should be noted
The most obvious impact is when the court reverses itself or otherwise modifies the underlying order such that the non-movant becomes aggrieved. The order on reargument is then an appealable paper for the non-movant. As for the moving party, such an order may moot its appeal from the underlying order, but if it does so only in part, the moving party may maintain the original appeal and add to it an appeal from the reargument order.

The non-moving party should also take care when receiving a motion for reargument. Counsel must scrutinize the motion to ensure it contains all papers from the underlying motion. If it does not, the opposition papers should add any excluded items to cover the possibility that the non-movant will have to appeal the reargument order. An incomplete record on reargument is something that is often recognized only after the fact, but a careful review of the papers filed on reargument can help to avoid this pitfall.

Author’s final thought…
A motion for reargument no doubt can complicate an otherwise straightforward appeal. However, the principles outlined above can help an appellate practitioner anticipate and avoid potential problems and work around those that arise. For more specific issues concerning your appeal and motions for reargument, it helps to have one of the experienced Appellate Counsel at Counsel Press on your side. Please contact me with any questions regarding preparing and filing any appeal.

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Tagged: Appellate Practice, New York State Appellate Division Third Department, New York State Appellate Division Fourth Department, Appellate Procedure, New York State Appellate Division First Department, New York State Appellate Division Second Department, New York State Court of Appeals, Litigation