The approval of new statewide rules for the New York Supreme Court Appellate Division, one of which reduced from nine months to six the period for perfecting appeals, is expected to result in the automatic dismissal of a passel of civil appeals not perfected by Sept. 14.
Though a precise number couldn’t immediately be placed on the dismissals that would take effect Monday, they were one known side-effect of a new set of rules aimed at establishing some level of uniformity for New York’s intermediate appeals courts, whose four departments have historically operated independently of each other and developed their own way of doing things.
Aside from shortening the time to perfect an appeal, the rules place new limits on the length of briefs and their replies and automatically involve the state attorney general’s office if a question of constitutionality is involved, among other changes.
Appellate attorneys reached Monday said the new six-month limit to perfect an appeal was among the most significant changes in the new rules, which span 30 pages. The Second Department already had such a limit, but until Monday the three other appellate courts allowed nine months to perfect an appeal.
Attorneys will now have six months to perfect regardless of which appellate department they frequent. Attorneys can ask for an extension twice after the six-month period. The first moves their deadline another 60 days. The second allows another 30 days. A formal motion is required if an attorney needs more time after both extensions.
If at any point an attorney fails to meet their deadline without being approved for an extension, the new rules allow the appeal to automatically be dismissed without a motion or order.
“There’s going to be a body of appeals deemed dismissed as of today,” said Scott Horn, of Mischel & Horn in Manhattan. “A lot of people are going to be caught unawares I think, and they’re going to have to make a motion.”
Horn is referring to a motion to vacate the dismissal of their appeal, which attorneys will have to make if they did not receive an extension or perfect their appeal before the six-month deadline. Appellants will have to show good cause to revive their appeal from the automatic dismissal.
Allen Shoikhetbrod, an associate at Tully Rinckey in Albany, said the new deadline should not be taken lightly but he expects the court to cut attorneys some slack while the new rules are still young.
“I think the big urgency is the perfect at this point, appeals that are pending for practitioners that may not be tracking those,” Shoikhetbrod said. “That’s the big problem. I think with the transition the departments will be lenient.”
The last day to perfect an appeal before the new rules became effective on Monday was Sept. 14. An attorney who filed a notice of appeal at any point after March 14 of this year still has time, albeit limited, to perfect an appeal before it’s dismissed.
If the notice of appeal was filed before March 14, or if leave to appeal was granted before that time, the appeal was automatically dismissed Monday, according to the new rules.
“In the event that an appellant fails to perfect a civil matter within six months of the date of the notice of appeal, the order of transfer, or the order granting leave to appeal, as extended pursuant to Section 1250.9(b) of this Part, the matter shall be deemed dismissed without further order,” the relevant part of the new rules said.
There are also new requirements for briefs and reply briefs, particularly concerning their length. Until Monday, the Third and Fourth departments had maintained page limits for those filings, according to Robert Rosborough, a partner at Whiteman Osterman & Hanna in Albany and author of the New York Appeals blog.
Now, briefs and reply briefs will switch from page limits to word counts. Briefs and reply briefs cannot exceed 14,000 and 7,000 words, respectively, according to the new rules.
That will make life easier for attorneys who practice in multiple departments, Rosborough said, because the First and Second departments had already transitioned to word counts from page limits.
“The biggest thing really is, up until this point each of the four departments has had their own set of rules for the same things in appellate practice,” Rosborough said. “The new Appellate Division rules will make it much easier regardless of which department where you’re practicing.”
The rules also require that attorneys send a copy to the state attorney general’s office of any brief that includes a question of constitutionality. That would allow the office to intervene in the appeal if it thought the state should be involved.
“That’s provided in trial courts but now it’s specifically delineated in appellate matters,” Shoikhetbrod said.
Attorneys in the Second and First departments will also now have one, uniform document to submit with their notice of appeal rather than different documents, according to Sanford Young, an appellate attorney in Manhattan.
“All of the departments under the uniform rules from the state now require an information statement that replaces the [Request for Appellate Division Intervention] in the Second Department and replaces the Pre-Argument Statement in the First Department,” Young said.
Each department will still maintain its own set of unique, local rules, though none are quite as far-reaching as the statewide rules. The Second Department, for example, will continue to prohibit rebuttal during arguments unless specifically granted leave by the court during arguments.
Attorneys said the new rules will take some getting used to, as any change in the state court system usually does. Shoikhetbrod said once attorneys get the hang of them, the changes will be for better.
“A big part of these rules is trying to streamline the process and getting these appeals adjudicated,” Shoikhetbrod said.