The Appellate Division Adopts New Uniform Rules of Practice Effective September 17, 2018

Under New York’s unique court structure, the Appellate Division is supposed to be a single statewide intermediate appellate court, broken into four different departments, where most appeals from the decisions of the trial court are finally resolved. But up until now, the four departments have functioned largely independently with rules of practice and customs unique to each.

Come September 17, 2018, however, all of the Departments of the Appellate Division will adopt a new set of uniform rules that will govern appellate practice in New York’s intermediate appellate courts throughout the State. Whether you’re before the First Department in Manhattan, the Second Department in Brooklyn, the Third Department in Albany, or the Fourth Department in Rochester, the rules will finally all be the same (for the most part).  That uniformity will make appellate practice so much better.

Here’s a quick look at some of the rules that are changing.

Perfecting Appeals

Before the new uniform rules were adopted, the Appellate Division departments had different time limits before an appeal would be dismissed as abandoned. In the First, Third, and Fourth Departments, the rule was if you don’t perfect your appeal within 9 months after serving the notice of appeal, the appeal would be dismissed as abandoned. In the Second Department, however, it was only 6 months.  The new uniform rules now provide that 6 months is the general rule.  The parties can, however, stipulate to extend the perfection date up to 60 days, and the appellant can thereafter apply by letter to extend the date another 30 days.  So, if the courts grant the extension requests, the date to perfect an appeal would be back to 9 months.

Briefs

Under the new uniform rules, all of the Appellate Division departments have adopted maximum word counts for briefs (14,000 for appellant’s and respondent’s briefs, and 7,000 for reply briefs). Before, the Third and Fourth Departments had maintained page limits, while the First and Second Department had moved to word counts. The uniform rules also now require briefs to be set in 14-point font (12-point for footnotes), which is new for many of the Departments.  And with the new word limits and font requirements, the last page of each brief must contain a certification telling the Court the name of the typeface, point size, line spacing, and word count to ensure compliance with the new rules.

Best of all, by adopting the uniform rules, the Fourth Department has done away with its (annoying) “no footnotes of any kind in briefs” rule! It was about time.

Challenging Constitutionality of State Statute

A new provision in the uniform rules gives the Attorney General the right to intervene in any case challenging the constitutionality of a state statute to which the State is not already a party. To allow the Attorney General the opportunity to make the decision whether to intervene, the party raising the constitutionality issue in such a case will be required to serve its brief on the Attorney General. That’s a logical extension of CPLR 1012, which gives the Attorney General the same right in proceedings before the trial courts.

Oral Argument

If your brief doesn’t specifically state that you are requesting oral argument of the appeal, and request a specific time allotment, you will be deemed to have waived oral argument and to have submitted the appeal on the briefs. This isn’t really a new requirement, it’s just more clearly stated in the new uniform rules.  The uniform rules also preserve the rules in the First and Third Departments that rebuttal time will be permitted if requested by the appellant’s counsel at the beginning of argument.  No such luck in the Second and Fourth Departments. Both have kept their previous rules prohibiting rebuttal time. Too bad.

Local Rules Preserved

Ok, ok. So, some of the unique local practices of the Appellate Division departments have been preserved in the local rules of each department.  Like the First Department’s rule that an appeal has to be placed on the calendar by the appellate at least 57 days before the first day of the term for which the appeal has been set.  And the Second Department’s rule that rebuttal isn’t available during oral argument, as I mentioned. The Third Department’s local rules deal mostly with the unemployment insurance, workers’ compensation, and Sex Offender Registration Act appeals that are a unique part of the Court’s docket. The Fourth Department did its best to keep its brief cover color requirements (blue for the appellant, red for the respondent, and gray for the reply brief) through the change to e-filing.

All in all, adoption of a new set of uniform rules for the Appellate Division is yet another step in the right direction, after the courts earlier this year adopted mandatory e-filing for many appeals and then recently expanded the e-filing program.  The new uniform rules will make it easier to practice in New York’s appellate courts for attorneys and clients alike.  Anything that makes practice better is a good thing in my book.

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