After you have invested so much time, energy and money appealing to (or defending an appeal in) the Appellate Division, little can be worse than receiving a decision that is adverse to your client. However, one should not despair entirely; you still have options. You may seek further relief from the Appellate Division or move directly to the Court of Appeals to seek leave to appeal in that court.1
Seeking Relief in the Appellate Division
After an adverse decision, a party may make a Motion for Reargument. In the Appellate Division First Department, service of the decision with notice of entry is not required to start the clock; instead, such a motion must be made within 30 days of the decision on the appeal. In the Appellate Division Second, Third and Fourth Departments, a Motion for Reargument must be made within 30 days of service with notice of entry of the Appellate Division’s decision on the appeal.2
Like any motion in the Appellate Divisions, a Motion for Reargument must include a notice of motion, an affirmation in support of the motion, a copy of the underlying trial court order and the notice of appeal. It must be accompanied by a $45 filing fee. Also required is a copy of the Appellate Division’s decision at issue.
As an option to the reargument motion or, more often, in the same motion, the party may also move in the Appellate Division for leave to appeal to the New York Court of Appeals. Thus, most parties will file a combined “Motion for Reargument and/or Leave to Appeal to the Court of Appeals.”
Motions for Leave to Appeal to the Court of Appeals are governed by CPLR §§ 5513 and 5516. In any department of the Appellate Division, Motions for Leave to Appeal must be filed within 30 days of service of notice of entry of the Appellate Division’s decision. In the Appellate Division Second, Third and Fourth Departments, the clock starts running at the same time for both reargument and leave to appeal motions. However, in the Appellate Division First Department, in theory, the time to file a Motion for Reargument might expire before the clock even starts running on the Motion for Leave to Appeal. Thus, most parties choose to file the combined motion during the time the reargument motion is still timely, even if it requires them to serve the successful party with a copy of the Appellate Division’s decision with notice of entry.3
In Part II of this article, we cover the second option – how to move directly to the Court of Appeals to seek leave to appeal in that court. Please proceed to Part II . (Sign up to this Blog to have an instant update when a new article is published.)
1In very limited cases, you may also have an appeal as of right to the Court of Appeals. See CPLR § 5601 for further detail.
2One day is added if the notice of entry is served by overnight delivery. Five days are added if the notice of entry is served by mail.
3Traditionally, the successful party serves a copy of the decision or order with notice of entry. However, either side may serve the notice of entry.
Tagged: Appellate Practice, New York State Appellate Division First Department, New York State Appellate Division Second Department, New York State Appellate Division Third Department, New York State Appellate Division Fourth Department, Appellate Procedure, New York State Court of Appeals