Appeals in the New York State Appellate Division: How does a Motion for Reargument differ from a Motion for Leave to Appeal to the Court of Appeals?

Published on January 22, 2014 by Jacquelyn Mouquin, Esq.
Filed under Appellate Practice
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Jacquelyn L. Mouquin, Esq. Although both a Motion for Reargument and a Motion for Leave to Appeal to the Court of Appeals seek further review of an appeal, the two types of motions request a different court to make that review. With a Motion for Reargument, the party is seeking the appeal to remain in the Appellate Division, while, with the Motion for Leave to Appeal, the party is requesting that a new court address the issues.

Neither a Motion for Reargument nor a Motion for Leave to Appeal should simply rehash your appellate brief or affirmation. Further, neither motion should introduce new points or arguments regarding your appeal. Instead, the purpose is to explain to the court the reasons why further consideration of the appeal is warranted.

In a Motion for Reargument, a party should explain to the Appellate Division the reasons that the panel was incorrect in its decision. Thus, the motion should highlight what the court overlooked or misapprehended when making its decision. References should be made to the specific parts of the record on appeal or appendix that highlight these errors.

A Motion for Leave to Appeal may include the same considerations. However, this motion should also explain why the questions presented merit review by the highest court in New York. The Court of Appeals Rules of Practice § 500.22(b)(4) identifies the following issues as ones that might merit review:

• issues that are novel or of public importance.
• issues that present a conflict with prior decisions of the Court.
• issues that involve a conflict among departments of the Appellate Division.

The Court of Appeals does not generally review issues of fact. Thus, in a Motion for Leave to Appeal, a party must highlight the questions of law that it believes the court should review.

Practitioners should be aware of timing issues with regards to filing each of these motions. In some courts, a Motion for Reargument may have a different time limit than a Motion for Leave to Appeal.

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

Tagged: Appellate Practice, New York State Court of Appeals, Appellate Procedure