Appellate Division, Second Department Rules Update

Effective March 8, 2018, the Appellate Division, Second Department updated two provisions of its court rules, as described here. The changes impact procedures regarding (1) orders to show cause and (2) communications with the court regarding new authorities after the case has been calendared. The full version of the Second Departments’ rules is available here.

Orders to Show Cause and Applications Pursuant to CPLR 5704

It has long been the practice that reasonable notice (usually defined as at least 24 hours) must be given to all parties before an order to show cause is brought in the Second Department. Historically, the Second Department rules have made it unclear as to whether the papers to be filed in court in connection with the order to show cause must be served on the parties prior to the appearance, or if simple notice was sufficient.

By the recent amendment to § 670.5, the Second Department indicates that “[t]o the extent practicable, that notice must be accompanied by a copy of the papers the party seeking relief intends to present to the court for filing.” Additionally, the moving party must include the manner of service of the proposed filing in its affirmation regarding notification of the order to show cause. Alternatively, the affirmation may indicate the reasons for lack of such service.

The amended provision also clarifies that either the moving party or the opposing party may request the opportunity to argue the merits of the order to show cause before the justice reviewing it.

These same provisions also apply to applications pursuant to CPLR 5704.

Post-Briefing Communications before Oral Argument

By the addition of § 670.20(i), the Second Department made clear in the amended rules that once a case is calendared for argument or submission (and thus assigned to a particular panel of judges), the only way to inform the court of new legal precedent is to send a letter to the court, copying all parties. The letter should indicate just the citation of the decision, statute, ordinance, rule, regulation, or other legal precedent. No argument should be included in the letter. This letter should be done prior to the date of submission or argument, as such a letter will only be accepted at the call of the calendar upon a showing of good cause.

Many cases are taking a year or more to reach the calendar in the Second Department after briefing. Upon calendaring of your appeal for argument or submission, it is prudent to do a search for any developments in the area of law to see if there have been any statutory changes or new cases that impact your appeal. If there are, you should send an immediate letter to the court pursuant to the new § 670.20(i).

AppealTech is happy to assist with all procedural aspects of your appeal. Please contact me with any questions.