Civil Appeals to the New York State Appellate Division Third Department: Procedural Aspects of Cross-Appeals

Linda H. Champlin Cross-appeals in the Appellate Division Third Department are handled in a different manner than in any of the other three Departments of the New York State Appellate Division. To compare, see Section 800.9(e) of the rules of the Third Department with Section 600.11(d) (1) of the Appellate Division First Department, Section 670.8 (c) (1) of the rules of the Appellate Division Second Department and Section 1000.4 (b) (1) of the rules of the Appellate Division Fourth Department.

Who is responsible for filing the record or appendix?
Section 800.9 (e) of the Third Department rules states that, “unless otherwise directed by order of the court made pursuant to a motion on notice, the plaintiff shall be the appellant and shall file and serve the record and brief, or brief and appendix, first.” Simply put, this means that, unless the plaintiff makes a motion asking to be relieved of this obligation, they are required to file and serve the record or appendix and opening brief first. Please note, however, that any party may take the lead, especially if they are the more aggrieved party.

What is the time limit to perfect the appeal and serve and file answering and reply briefs?
Section 800.9 (a) of the rules of the Appellate Division Third Department state that an appealing party must perfect (serve and file the record and opening brief) “within 60 days from service of the notice of appeal,” and failure to do so can invite a motion by your adversary to dismiss the appeal. However, unless a motion has been made to dismiss, the outside time you have to perfect is “nine months from the date of the notice of appeal.” (See Section 800.12). The answering brief (and appendix if the appeal was perfected by the appendix method) needs to be “filed and served within 30 days after service of the first brief” and needs to address “the points of argument on the cross-appeal.” A reply brief is required to be “filed and served within 10 days from service of the answering brief.” The reply brief to the cross-appeal needs to be filed and served 10 days after service of the first reply brief. See Section 800.9 (e).

Who bears the cost of preparing the record or appendix?
In the Third Department, cross-appellants are not obligated to contribute to the cost of preparing the record or appendix. That does not mean there can’t be dialogue between the parties about sharing costs. Just keep in mind that if you are the defendant and you choose to take on the filing and serving of the record or appendix and your brief first, the plaintiff does not have to help with the cost of preparing that record or appendix.

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