The Supreme Court of the State of New York, Appellate Division, Second Department is generally quite flexible with practitioners appearing before it when it comes to briefing schedules, enlargement requests and even the scheduling of oral arguments. The Court takes its calendar very seriously though. Once an appeal is on the calendar to be heard, the Court’s policy is to NOT remove it. The Court does not want to hear about events, plans or obligations that prevent you from attending your oral argument after it has been scheduled.

The Appellate Division, Second Department is willing, however, to consider dates that you (and/or your adversary) are unavailable before scheduling the oral argument. All they require is a letter, preferably submitted at the time the last brief is filed, setting forth dates that the parties cannot attend oral argument. Since the Court sometimes takes several months to calendar an argument, attorneys have a continuing obligation to advise the Court of their unavailability as such dates arise.

So, if you have any vacation time planned, family commitments, religious holidays or professional obligations that cannot be changed and still have an appeal pending for which you are awaiting an oral argument date, write to the Court to advise of your unavailability. The letter may be sent by fax to the attention of the Court’s calendar clerks at (212) 401-9114.

Similarly, communication with the Court is essential when a cause (defined as, among other things, an appeal or proceeding – see 22 NYCRR 670.2[a][1]) becomes unnecessary because the underlying action has wholly or partially settled or any of the issues become wholly or partially academic. Furthermore, if the cause should not be calendared because of bankruptcy, death of a party, inability of counsel to appear, etc., the Court must be notified immediately. See 22 NYCRR 670.2[g]. If an attorney or party fails to promptly notify the Court, sanctions may be imposed at the Court’s discretion. Notice may be sent to the Clerk of the Court by fax to (212) 419-8457 or by e-mail to ad2clerk@courts.state.ny.us.

So, whether it’s advising the Court of your own unavailability or providing notice that the Court’s attention to a matter is no longer needed, as with any relationship, communication is key.

Tagged: Appellate Practice, New York State Appellate Division Second Department, Appellate Procedure, Litigation