The Appellate Division Fourth Department handles appeals with multiple appellants and cross-appellants in a different manner than any of the other three Departments of the New York State Appellate Division. In Part I of this article, we covered the procedure for consolidating appeals, timing for perfecting an appeal, sharing the cost of the joint record and timing for an appellant's opening brief. (Read Part I.) In this part, we go over the color cover requirements at the Fourth Department and the alternative courses that an attorney can follow in filing their briefs as a cross-appellant-respondent.
Understanding color cover requirements
The Fourth Department requires that all briefs filed at the court have the appropriate color cover for the particular type of brief that is being filed. These requirements are covered in Rule 22 NYCRR 1000.4 (f) (5). From the first glance, the requirements may appear straight-forward; however, in practice, it can get very confusing when many parties are involved in an appeal. Especially confusing can be a situation when a party is a cross-appellant-respondent. In that case, the question arises whether the party should file a respondent's brief or an appellant's brief, or both, and what color should their brief(s) be.
Two options for filing brief(s) as a cross-appellant-respondent
The court allows the attorney to choose how they wish to proceed. A cross-appellant can choose to file a separate appellant's brief and then file a respondent's brief, responding to the lead appellant's case, as long as a cross-appellant is still timely in perfecting their appeal. This is not the most common route, but it is not unusual. The other alternative is for the cross-appellant-respondent to respond to the lead attorney's appellant's brief with a respondent's brief that also includes their appellant's argument. This process will involve less briefs being filed with the court and is probably the more common choice.
Factors for choosing one option over another
Factors that might lead an attorney to choose one route over the other would include:
1. Timing – do they have enough time to still file an appellant’s brief?
2. Strategy – do they want both appellant's and respondent's arguments in the same brief?
3. Cost – two briefs filed per-party versus three briefs filed.
We recently had that exact situation play out on an appeal and not only can it be confusing for the attorneys, but it can make it very complicated for the court. However, that is the system in the Fourth Department and it provides the attorneys with many more choices on how to proceed than are provided in other departments. Of course, with choice comes complexity!
Should you have any questions regarding the rules and procedures at the Appellate Division Fourth Department, please do not hesitate to reach out to Robert Brucato directly. Mr. Brucato is an admitted attorney in the Fourth Department and he has been working in the appellate field for over 21 years, primarily in the Third and Fourth Departments and the United States Court of Appeals for the Second Circuit. Counsel Press provides the experience, quality and service in these courts that you cannot find in any other appellate services provider in the nation.
Read related articles:
Appellate Division Third Department and Appellate Division Fourth Department: Key Differences in Record and Brief Preparation (Part I)
Appellate Division Third Department and Appellate Division Fourth Department: Key Differences in Record and Brief Preparation (Part II)