THE NUTS AND BOLTS OF APPELLATE DIVISION MOTION PRACTICE by ANNETTE G ...

THE NUTS AND BOLTS OF APPELLATE DIVISION MOTION PRACTICE

by ANNETTE G. HASAPIDIS, ESQ.

Law Offices of A.G. Hasapidis South Salem

Revised and Updated by

DOLORES GEBHARDT, ESQ.

McCarthy Fingar LLP White Plains

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THE NUTS AND BOLTS OF APPELLATE DIVISION MOTION PRACTICE

Original Outline by: Annette G. Hasapidis, Esq.

Revised and Updated by:

Dolores Gebhardt, Esq. McCarthy Fingar LLP 11 Martine Avenue

White Plains, NY 10606 (914) 946-3700

I. Types of Motions

Appellate motions include:

a. Motions Pertaining to Appealability: CPLR ??5511, 5512(a), 5701 b. Motions pertaining to Reviewability: CPLR ?5501 c. Motion for a Stay of Enforcement: CPLR 5519 d. Motion to Enlarge Time to Perfect Appeal e. Motion for a Preference: CPLR 5521 f. Motion for Reconsideration: 22 NYCRR ?670.6 g. Motion to Strike a Record on Appeal and/or a Brief h. Motion for Leave to Appeal to the Court of Appeals

II. Necessary elements of all appellate motions

a. 22 NYCRR ??670.2(i), 670.5

b. Brevity is key: The Court reviews countless motions on a weekly basis, so keep your papers concise. This not the Brief you are writing! Reference only those facts necessary to resolution of the motion. If you are moving for a preference, explaining the tortured history of the case is unnecessary.

c. Ensure that you have clearly and specifically defined the relief you seek, including alternative relief.

d. The clerks typically review your papers for compliance with the Rules, so do not make them read each page of the motion to do so. Establish procedural compliance on page one.

e. Annex a copy of the notice(s) of appeal and underlying order(s) as an exhibit.

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f. Include a statement that the motion is not frivolous (22 N.Y.C.R.R. ?1301.1).

III. Motions pertaining to appealability (CPLR ??5511, 5512(a), 5701)

a. Is the paper a decision/order/judgment? The "label" is not dispositive, the content of the paper is. Paper that is labeled a decision but concludes with the statement that "This constitutes the Decision and Order of this Court" is an appealable Order. An oral mandate is not appealable paper. PRACTICE TIP: If a lower court judge makes a ruling from the bench, get the transcript "so-ordered."

b. If you err and file a Notice of Appeal from a Decision or other nonappealable paper, the court will generally direct you to provide a copy of the Order or Judgment when it is entered and will not dismiss the premature appeal. CPLR ?5520(c).

c. Denial of a motion for reargument (CPLR ? 2221) (i.e., the lower court misapprehended the facts or the law) is not appealable. Denial of a motion to renew (CPLR ? 2221) (i.e., there are new facts not presented to the court which, if they had been presented, would have changed the outcome) is appealable.

d. An order resolving only one prong of a multi-prong motion is not appealable as of right. You must move for leave.

e. Confirm that you may appeal as of right, otherwise the court will consider your Notice of Appeal a request for leave to appeal and may, sua sponte, dismiss the appeal. You will have therefore lost the opportunity to proffer arguments why leave is proper, so never assume that the Court will notify you of an appealability issue. PRACTICE TIP: don't assume; look it up! When in doubt, call the Clerk of the Court!

f. The statutory list of the eight types of orders appealable as of right to the appellate division:

Orders granting, refusing, continuing, or modifying a provisional remedy;

Orders settling, granting, or refusing an application to resettle a transcript or statement on appeal;

Orders granting or refusing a new trial, except where specific questions of fact arising upon the issues in an action triable by

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the court have been tried by a jury, pursuant to an order for that purpose;

Orders involving some part of the merits;*

Orders affecting a substantial right;*

Orders in effect determining the action and preventing a judgment from which an appeal might be taken;

Orders determining a statutory provision of the state to be unconstitutional, and the determination appears from the reasons given for the decision or is necessarily implied in the decision; and

Orders granting a motion for leave to reargue or determining a motion for leave to renew.

g. Examples of orders that are not appealable as of right:

In limine rulings;

Orders imposing sanctions; and

Discovery orders or rulings, but where a court directs the disclosure of information claimed to be privileged, an application for leave could be made by arguing that the order affects a substantial right.

h. Evidentiary rulings made during trial, or in advance of trial, are not appealable. Cotsgreave v. Public Adm'r of Imperial County, 91 A.D.2d 600, 456 N.Y.S.2d 432 (2d Dep't 1982). QUERY: what if the ruling affects a substantial right?

i. Motions pertaining to standing and "aggrieved party" status (CPLR ?5511)

Aggrieved party status and standing are intermingled in discussions. The Second Department has stated that "[i]t is well settled that only an `aggrieved party' has standing to appeal." Whiteman v. Temimah, 255 A.D.2d 378 (2d Dep't 1998).

Is the appellant the party who filed a Notice of Appeal? If counsel did not appeal an order that affects him, he cannot piggyback onto his client's Notice of Appeal. Has the proposed appellant waived the right to appeal by settlement with another?

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