Filing Deadlines at the Appellate Division – First Department
The Appellate Division – First Department is a “calendared” court that operates on an annual calendar of ten filing terms. Attorneys perfecting appeals before this court need to be cognizant of not only their expiration date but also of term filing deadlines in order not to give undue time advantages to their adversaries.
While the court has two conflicting rules regarding time permitted to perfect an appeal, the 30-day rule 600.5(d), is not enforced by the court. Virtually everyone perfecting at First Department does so under the nine-month rule 600.11 (a)(3). Simply stated the nine-month rule allows attorneys up to nine months from the date typed on their Notice of Appeal to perfect their appeal.
Thus, an attorney who timely served and filed a Notice of Appeal dated October 11, 2016 would have until July 11, 2017 to perfect the appeal before time expires. Clearly, the attorney is free to perfect the appeal at any time during the allotted nine-month appellate window.
As you can see from the term calendar available HERE every term has a designated due date for a specific action of the perfecting process. For instance, an attorney perfecting for the October Term is required to serve and file his or her record on appeal, appellants brief and note of issue no later than August 7th; Respondents must serve and file 30 days later on September 6th, and the Appellants Reply Brief is due 9 days later on September 15th. Oral arguments for the term begin October 3rd.
Not being cognizant of term filing deadlines, however, can have significant consequences. Waiting one day longer to perfect the above appeal on the last day of August 8th, will automatically put the attorney into the November Term giving the Respondent until October 4th, (57 days) to serve and file their brief. The additional 27 days clearly provides a significant time advantage for the Respondent to digest the Appellant’s arguments, research case law, and draft compelling counter-arguments.
For attorneys whose nine-month eligibility window expires in late March, April, May or June recognizing term filing deadlines is even more compelling as the June Term filing is the last before the court goes on summer hiatus. Perfecting an appeal after March 20 (2017 deadline) automatically places the appeal in the September Term giving the Respondent up to as much as four months to prepare and draft their brief.
Savvy practitioners in the First Department target a term in which to perfect their appeal and studiously avoid perfecting between term deadlines. And, they especially avoid perfecting a soon to expire appeal after the June Term deadline thereby falling into the court’s summer gap.
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