Knowing the difference between cross- and concurrent appeals in New York State courts
When more than one party files a notice of appeal from the same order or judgment, the situation calls for either a cross-appeal or a concurrent appeal.
A cross-appeal is an appeal of an order or judgment made by parties who have clashing interests with regard to the order or judgment in question. A concurrent appeal is an appeal of an order or judgment made by separately represented parties whose interests align.
For example, in a case where a plaintiff sued for $1,000,000 in damages and is awarded a judgment of $100,000, both the plaintiff and defendant have the option to file a notice of appeal – the plaintiff may feel that the award of damages was too low, and the defendant may believe that any award of damages is too high. The appeals in this case would be handled as a cross-appeal.
In contrast, in a case where a doctor and a hospital, both defendants in the same case but represented by different counsel, make unsuccessful summary judgment motions against the plaintiff, each may file a notice of appeal. Assuming no cross-motions between the doctor and the hospital, the appeal would likely proceed as a concurrent appeal.
With cross-appeals, there are usually four rounds of briefing:
• an opening brief by the lead appellant (otherwise known as an appellant-respondent, appellant-cross-respondent, or appellant-cross-appellee),
• an opening brief by the cross-appellant (otherwise known as respondent-appellant, respondent-cross-appellant, or appellee-cross-appellant) that addresses the lead appellant’s appeal and opens the arguments on the cross-appeal,
• a reply brief by the lead appellant that addresses the cross-appeal and replies on the lead appeal,
• and a reply brief by the cross-appellant that only addresses the cross-appeal.
With concurrent appeals, the usual three rounds of briefing remain:
• the opening briefs by the concurrent appellants,
• the opposition brief by the respondent or appellee,
• and the reply briefs by the concurrent appellants.
Nevertheless, in the Appellate Division, First and Second Departments, and the United States Court of Appeals for the Second Circuit, the timing and page length for each brief is different.
In the First Department, the briefing schedule usually does not change from the ordinary term calendar if there is a concurrent appeal as long as all briefs of the concurrent appellants are filed in time for the same term of the court. For cross-appeals, the term calendar is also followed, but the respondent-appellant’s reply is due nine days after the appellant-respondent’s reply. (However, it is effectively 10 days because 9 days out is usually a Sunday.) The opening briefs are permitted 14,000 words and 70 pages, while the reply briefs are permitted 7,000 words and 35 pages.
In the Second Department, briefs of concurrent appellants must be filed on the same date, unless one of the concurrent appellants proffers its brief for filing on the last day to perfect the appeal, whether by the six-month deadline or an enlargement order. Cross-appeals in this court are initiated by a brief of up to 14,000 words by the appellant-cross-respondent. Thirty days later, a respondent-cross-appellant brief of up to 14,000 words is permitted. Another thirty days after that, the appellant-cross-respondent may file an answering brief of up to 14,000 words on the cross-appeal which also addresses the reply on the initial appeal. Finally, the respondent-cross-appellant may file a 7,000 word reply brief to address remaining issues on the cross-appeal.
Second Circuit cross-appeals begin with a brief of up to 14,000 words by the appellant-cross-appellee. An appellee-cross-appellant is permitted up to 60 days and up to 16,500 words. The appellant-cross-respondent is then allowed up to 30 days and up to 14,000 words for its response and reply brief. Lastly, the appellee-cross-appellant is allowed up to 14 days and up to 7,000 words for its reply.
Because each court handles the timing and word limits differently, it is imperative that a practitioner be cautious when handling an appeal with separately represented appealing parties. It must first be determined whether those parties are adverse to one another with regard to the issues on appeal, which is not always a clear question, and then determine what the court-specific rule is regarding timing and page limitations in the briefing.
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