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.
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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