Be A Time Traveler: Motions for Stays and Preferences in the Appellate Division

Bill White, Esq.

Do you need the Appellate Division to rule on your appeal rapidly? While the court ultimately controls the pace of an appeal, the parties have options to affect the timing. This blog post will detail the ordinary lifespan of appeals in the First Department and Second Department, it will explain how to ask for a preference and it will provide other options to manage time.

In the ordinary course, an appeal in the First Department is decided about 5-6 months from the date an appellant files an opening brief and record. However, 5-6 months can easily turn into 7-9 months. The court might adjourn oral argument due to an overcrowded docket, or it could take the court more than its 2-month average to issue a decision. In the Second Department, an appeal is decided an agonizingly long time after an appellant files an opening brief and record – an average of 20 months.

Parties can avoid having the First Department adjourn their appeal, or cause the Second Department to schedule their argument more quickly, by making a motion for a preference. If granted, the court prioritizes an appeal for assignment to an oral argument date. Certain appeals are entitled by law to a preference, but for the vast majority of appeals, parties must seek a preference by motion, which is granted only if good cause is shown. In the First Department, a motion for a preference should be made as soon as possible after the appeal is perfected, in order to ensure that the court can grant a preference before the court has a chance to adjourn the appeal. In the Second Department, it also helps to make the motion expeditiously.

A preference is not a party’s only option to affect the timing of an appeal. If it is important for the court to decide an appeal before a certain event occurs, a party can move to stay that event. If a stay is granted, the speed with which the appeal is resolved becomes virtually irrelevant, because the stay will forestall the event that occasioned the need for a quick decision. A motion for a stay can be made in either the appellate division or the court of original jurisdiction and is granted only upon a showing of good cause.

In sum, parties have options if the timing of an appellate division decision might affect other events. They can either hasten proceedings with a preference or forestall an event with a stay. If you need assistance with pursuing any of these options, please contact the experts at Counsel Press.

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