Appeals in the New York State Appellate Division: Adverse Decision? What Now? (Part II)

Even after receiving a decision that is adverse to your client, 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 In Part I of this article, we covered how to seek relief in the Appellate Division; we herein go over the options when seeking relief in the Court of Appeals. (Read Part I.)

Seeking Relief in the Court of Appeals
A Motion for Leave to Appeal to the Court of Appeals may be filed directly with the New York Court of Appeals at one of two times: just after the adverse Appellate Division’s decision or after denial of relief in the Appellate Division. With the first option, a party files immediately after the Appellate Division’s decision is issued within 30 days of service of the decision with notice of entry. In such cases, a party would completely bypass seeking relief in the Appellate Division after the adverse decision.

The other option, however, is commonly thought of as the “second bite of the apple” approach. Here, a party will file a Motion for Leave to Appeal to the Court of Appeals in that court after denial of a Motion for Reargument and/or Leave to Appeal that has been made in the Appellate Division. Pursuant to 22 NYCRR 500.22(b), as long as the timeliness and procedural history of the appeal is demonstrated, it is permissible to make the same motion in two different courts.

After having previously filed a similar motion in the Appellate Division, a Motion for Leave to Appeal to the Court of Appeals must be made within 30 days after service of the Appellate Division’s order denying leave to appeal with notice of entry. Thus, a timeline in each of the following courts might look something like this: Click here.

When filing a Motion for Leave to Appeal in the Court of Appeals, in addition to the standard filing fee, notice of motion and affirmation/declaration in support (including the above-described procedural and jurisdictional history), parties must include one copy of each brief filed in the Appellate Division, one copy of the Appellate Division’s record on appeal or appendix, the Appellate Division’s order and a corporate disclosure statement (where appropriate).

If a few weeks, we will publish Part III of this article covering the differences between a Motion for Reargument versus a Motion for Leave to Appeal to the Court of Appeals. Please sign up to this Blog to have an instant update when the 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.

Tagged: New York State Court of Appeals, Appellate Practice


 
 

CP Legal Research Group Appellate Practice Litigation Real Estate Oral Argument Foreclosure Practice Appellate Services History Supreme Court of the United States Production & Support California Court of Appeal New York State Appellate Division Third Department New York State Appellate Division Fourth Department United States Court of Appeals for the Second Circuit Appellate Procedure New York State Appellate Division First Department New York State Appellate Division Second Department New Jersey Superior Court Appellate Division The Appellate Law Journal United States Court of Appeals for the Ninth Circuit United States Court of Appeals for the Eleventh Circuit Supreme Court of Pennsylvania New York State Court of Appeals Supreme Court of California United States Court of Appeals for the Tenth Circuit Supreme Court of Virginia Court of Appeals of Virginia United States Court of Appeals for the Seventh Circuit Supreme Court of New Jersey Superior Court of Pennsylvania Supreme Court of Illinois The Maryland Court of Appeals United States Court of Appeals for the Federal Circuit United State Court of Appeals District of Columbia Circuit Supreme Court of the State of New York Condo & COOP Court Technology Electronic Briefs