New York Appellate Division, Second Department: Case Settled Between Briefing and Argument? Alert the Court!

Section 670.2(g) of the Appellate Division, Second Department rules requires that “parties or their counsel shall immediately notify the court” if a case is wholly or partially settled during the pendency of an appeal, under threat of sanctions or costs against the parties. On March 25, 2015, the Court emphatically reminded practitioners of this rule in the case of Irish v. Town of Greenburg, Docket No. 2013-01934, 2015 NY Slip Op. 02452, available here.

In this case, the briefing was completed in November of 2013, but the oral argument was placed on the calendar for February 3, 2015. In the intervening 14 months, the parties entered a stipulation whereby the appellant agreed to pay the judgment, plus preverdict and postverdict interest, within 30 days of the entry of judgment. The judgment was entered on October 9, 2014, and the stipulated amount was paid shortly thereafter.

On February 3, 2015, the date of the scheduled oral argument and several months after the satisfaction of the judgment, the appellant notified the Court by letter, with a copy of the stipulation and judgment, that the amount had been paid and the appeal had been rendered academic.

In its March 25, 2015 decision, the Appellate Division, Second Department dismissed the appeal as academic, as expected. The Court further issued an order to show cause as to why sanctions should not be imposed pursuant to § 670.2(g).

The outcome of the order to show cause is still undecided. However, let this serve as an example to practitioners: if an appeal becomes academic or moot, be sure to withdraw the appeal in whatever manner the Court requires. In waiting until the day of argument, for which it can be assumed that the panel spent considerable time preparing, valuable judicial resources went to waste. The Court could have been alerted at an earlier date, in compliance with the requirement of “immediate” notification under § 670.2(g).

UPDATE: On May 26, 2015, the Second Department decided its order to show cause. See Irish v. Town of Greenburg, Docket No. 2013-01934, 2015 NY Slip Op. 74175(U), available here. Reminding the parties of the scope of § 670.2(g), the court ordered the appellant to pay a sanction of $250 to the Lawyer’s Fund for Client Protection of the State of New York, and to furnish proof of payment of the sanction.

Please contact me with any questions regarding preparing and filing any appeal. Counsel Press provides a full spectrum of appellate services. Our New York office focuses on rule-compliant appellate filings in the New York State Court of Appeals, New York State Appellate Division (First-Fourth Departments), New York State Appellate Term (First-Second Departments) and the US Court of Appeals for the Second Circuit. Through our local offices, we offer in-depth knowledge of rules and procedures in all state and federal appellate courts nationwide.

Read related article: How to Avoid Calendaring Conflicts in the Supreme Court of the State of New York, Appellate Division, Second Department

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


 
 

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