Key tips on how to successfully perfect an Appeal at the Appellate Division First Department
AppealTech recently held the CLE program: How to Successfully Perfect an Appeal in New York: The Perspective from Both the Court and a Practitioner at the New York City Bar Association
The panel included:
Michael Kestan, Esq., President of AppealTech | CLE Chair
Daniel Ramos, Court Clerk Specialist, Appellate Division, First Department
Vincent Chirico, Esq., Principal Attorney at Chirico Law
Rafael A. DeClet, Esq., Principal Appellate Court Attorney, Appellate Division, First Department
Honorable Angela M. Mazzarelli, Appellate Division, First Department
I wanted to share the following from my experience:
Michael Kestan, President and Owner of AppealTech
30 Day Rule
1. Pursuant to section 600.5(d) of the New York State Rules of Court, the record on appeal must be filed 30 days after the filing of the notice of appeal. However, pursuant to section 600.11(a)(3) of the same rules: “The clerk will place no civil appeal or cause on the calendar where the necessary papers and briefs are not offered for filing within nine months of the date of the notice of appeal from the judgment or order appealed from. . .”
2. It is a tool for the respondent to expedite the matter
3. Respondent would have to file a formal motion to dismiss for not filing within the 30 days
4. Once motion to dismiss is filed, court will uniformly grant it unless the appellant perfects by a certain term deadline, less than the 9 months
Daniel Ramos, Court Clerk Specialist at the Appellate Division, First Department.
1. An Order resulting from a motion made without notice is not appealable.
2. A Decision alone is not appealable-it must be an Order.
3. An Order denying leave to reargue is not appealable.
4. An Order granting/denying renewal is appealable.
5. An order denying a motion to resettle a prior order or judgment is not appealable.
6. Without a Motion or stipulation between the parties to supplement the record, documents cannot be added to the record once the record has been certified (CPLR 2105) and filed with the court.
7. Supplemental Appendix must use Prefix of SA proceeded by the number.
8. Supplemental Records must use Prefix of SR proceeded by the number.
9. Appendix cites should be made with an “A” reference, Records with an “R”.
10. If there is a transcript that needs to be settled, it must be done at least 15 days prior to perfecting. Proof of settlement must be in your Appendix/Record on Appeal.
Vince Chirico, Principal Appellate Attorney at Chirico Law
Brief Writing: Best Practice
2. Point headings
• “The Roadmap”
3. Questions Presented
5. Statement of facts
• “Necessary” facts
• “Supporting” facts
6. Preliminary Statement
• “The Summary”
Preparing for Oral Argument
1. Be prepared for a hot bench!
2. Have a simple outline of your argument, for ease of reference during oral argument (no “paper shuffling”)
3. Be familiar with the judges who you will argue before. Attend oral argument in advance to build familiarity with the protocol.
4. Always appear for oral argument. Do your clients the justice they deserve.
Raffael DeClet, Esq. Mr. DeClet, Principal Appellate Attorney for the pool that writes the Bench Memorandum at the Appellate Division, First Department.
1. They first look at the Pre-Argument Statement, then the Table of Contents followed by the Table of Authorities.
2. Mr. DeClet stressed the importance of Point Headings in the Table of Contents, as it provides both the attorneys and the justices with an immediate guide to the issues being appealed.
3. Each and every statement of fact should cite to the Record on Appeal.
4. Citations should conform to the New York Law Reports Style Manual (the Tanbook NOT Bluebook).
5. Mr. DeClet also stressed the importance of proper citation exhibiting to the New York Law Reports Style Manual throughout his presentation. According to Mr DeClet, “throw the Bluebook away if you are perfecting an appeal at the Appellate Division, First Department”.
6. Citations contained in all underlying documents should also conform to the New York Law Reports Style Manual.
7. Never use Passim.
8. Cite Slip Opinion rather than Westlaw or Lexis citation.
9. Use Short Cite not supra.
10. Exhibits that reference documents that include small print or are difficult to read, such as contracts and leases, can be highlighted (just highlight the specific areas you reference in the document. Ensure that when your documents are printed/copied the highlighted area is in color or the highlighted area becomes darker and totally unreadable).
11. Make sure Exhibits are clear and readable. For example, they receive a lot of photographs that are indiscernible.
Honorable Angela M. Mazzarelli, Associate Justice at the Appellate Division, First Department
1. Determine whether you have a viable appeal
2. Consult the rules or your appellate printers
3. Determine when to file your appeal
4. Determine whether a stay is necessary
5. Prepare a brief that is accurate, concise and clear
a. Follow the Hon. Israel Rubin “ABC” rule of Brief Writing
i. “A” is for ACCURATE
ii. “B” is for Brevity
iii. “C” is for Clarity
6. Make a presentation at Oral Argument that impresses the bench
a. Follow the Hon. Israel Rubin “3C’s” rule for oral argument
i. The first “C” is for CLARITY
ii. The second “C” is for CONCISE
iii. The third “C” is for CONVINCE
iv. A fourth “C” to keep in mind – BE COURTEOUS
NB. Do not come to argue and ask them questions. They have read your case and will ask you the questions
If you would like to access the full CLE, please click HERE to purchase the on-demand program via the New York City Bar Association website.
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