Motion Practice at the Appellate Division, Fourth Department, Part 1 of 2

Robert C. Brucato, Esq. We frequently receive questions from attorneys and their staff regarding procedural requirements for motion practice at the Fourth Department. This will be a two-part blog that will review the general requirements of motion practice, as well as specific types of motions.

With any motion to the Fourth Department, you will want to refer to Rule 1000.12 of the Court’s rules. All motions are returnable on Mondays at 10AM and are heard on papers with no argument permitted. If Monday is a holiday, the motion will be heard on the first business day of the week. Motions cannot be adjourned without the written consent of the parties.

Return dates are calculated using guidelines set by CPLR 2214(b) and 2103(b). If the papers are served personally, eight days’ notice is required. If the papers are served by overnight, nine days’ notice is required and, if by regular mail, 15 days’ notice is required. Cross-motions are returnable the same day as the motion with at least four days’ notice required, and they cannot be served by regular mail. Keep in mind that motions are not always decided immediately after the return date.

All motions or cross-motions require a Notice of Motion, supporting affidavits, proof of service on all parties, a copy of the Notice of Appeal or Order of Transfer, a copy of the Order or Judgment being appealed, along with the Court’s Decision, if there is one, and any prior Order from the Fourth Department. An original and one copy are filed, and one copy is served. There is a $45 filing fee on all civil motions and cross-motions. The charge is waived in poor person cases. Filing copies must be received at the court by 5PM on the Friday before the return date. If that Friday is a holiday, then the copies must be received on Thursday. Electronic submissions are acceptable, provided they otherwise comply with the rules, and printed copies are sent to the Court on the date of the transmission.

A common situation where questions arise is on Motions for an Extension of Time. Extensions of time to perfect an appeal are covered under Rule 1000.13(f). These motions must be made on or before the date by which the appellant must perfect the appeal. The motion need only be served by that date. Filing copies are due the Friday before the return date. In support of the motion, the appellant must submit an affidavit demonstrating a reasonable excuse for the delay and an intent to perfect the appeal within a reasonable time. Extensions of time to file a brief (Rule 1000.13(h)) must be made prior to the deadline by which the brief is due. If the motion is made after the brief is due, then the motion should properly be called a Motion to File a Late Brief. It is treated the same as a Motion for an Extension of Time. For both sets of circumstances, it is necessary to show a reasonable excuse for the delay and an intent to file within a reasonable time.

After a motion has been made for permission to perfect or to extend time to file a brief, always wait until you receive an Order granting permission to file (a copy of which should go with the brief or record, when filed). If the Court receives the brief or record without the Order, the documents will be sent back to the firm.

Counsel Press’ award-winning team is always ready to share its knowledge and expertise. The biggest advantage of utilizing Counsel Press is peace of mind – there is no substitute for knowing your filing will be completed correctly the first time, every time.

Tagged: Appellate Practice, Litigation, Appellate Services, New York State Appellate Division Fourth Department