Need More Time? How to Get an Extension (Enlargement) to Perfect Your Appeal/File Your Brief in the NY Appellate Divisions or Second Circuit

The Rolling Stones memorably sang that “Time is on My Side,” but with the realities and demands of the legal profession, there simply aren’t enough hours in the day to get everything completed and filed when due. So, here’s a quick primer on how to request an extension (or an enlargement of time, if that’s the nomenclature used) to file your Record, Appendix or Brief at the NY Appellate Divisions or in federal court at the Second Circuit.

Appellate Division, First Department

If you are the appellant seeking an enlargement of time to perfect your appeal in the First Department, a motion is required. In support of that motion, you can attempt to get consent from the other party or parties involved in the matter and a signed stipulation from all parties can be included as an exhibit in support of your affirmation/motion.
If you need more time to file a Respondent’s Brief or Reply Brief, it is possible to stipulate to the extension, up to 7 days, without changing the calendar term. A stipulation for more than 7 days requires that you identify the new term to which the appeal is being adjourned, and you may adjourn up to two terms later than the currently noticed term. Under Rule 670.11(g), you may not stipulate to adjourn into the June term. If the other party (parties) won’t stipulate, or you need an extension beyond one week, then you’ll still have to file a motion to adjourn the appeal to another term. That motion should be made by expedited relief application.

Appellate Division, Second Department

In the Second Department, you can stipulate to an enlargement of time up to 60 days, without necessity of a motion. You can also stipulate for an extension to file the Respondent’s Brief (up to 30 days) and a Reply Brief (up to 10 days). See Rule 670.8(d). Please note that the practice of the court is to accept only one stipulation to enlarge time per case. In the alternative, you can request an extension simply by letter to the court (just make sure you have included your reason for the request). Usually the first request for an extension by letter will be granted as a matter of course, and even a second request for an extension can also be made by letter. Third time is the charm, however – and that third request will require a motion.

Appellate Division, Third Department

Unfortunately, you cannot request an extension by letter to the court in the Third Department, or stipulate to it with the other side. A motion is required (including an affidavit indicating the reason the extension is required, and when you intend to perfect the appeal) and must be filed prior to the last date to perfect. The court does offer a sample Motion for Extension of Time to Perfect Appeal on its website here.
The process to get an extension to file a Respondent’s Brief can be much easier – you can just call the court and request it (up to 30 days). The same process is followed for the Reply Brief, as a simple call to the court can allow for a reasonable extension of time to file. If you need additional time beyond what the court will grant by phone, it will require agreement from the adversary (adversaries) and a letter to the court with a copy to all parties involved, requesting the extension.

Appellate Division, Fourth Department

An extension of time to perfect the Record on Appeal or file any brief in the Fourth Department always requires a motion, which must be made on or before the last date. Again, include in the motion an affidavit “demonstrating a reasonable excuse for the delay” and an intent to perfect the appeal or file/serve a brief within a reasonable time. See Rule 1000.13(f) and (h).

U.S. Court of Appeals for the Second Circuit

On the federal side, in the Second Circuit a request for an extension of time to file must be made by motion, and in order to have an extension granted you must show “extraordinary circumstance, such as serious personal illness or death in counsel’s immediate family” that prevent you from meeting your deadline. See LR 27.1(f). In practice, however, the court will generally grant the first motion for an extension (up to 30 days) for good cause, but with a second request you will certainly be held to the “extraordinary circumstances” requirement and such an extension will only be granted in those limited situations.

Be sure to include in the motion whether there was a prior motion for similar relief and how the court ruled, and whether any prior order indicated that no further extension would be granted. See 27.1(f)(2). Also, the motion for an extension of time should be made “as soon as practicable after the extraordinary circumstance arises,” see 27.1(f)(3), but at least 7 days before the current due date (14 days is preferred).

This is just an overview of basic steps in requesting and extension or enlargement of time to file your appeal (or brief). AppealTech’s experienced appellate counsel and paralegal team are always available to provide clarification on this or any other issue related to your appeal. You can contact us any time at (888) 619-2000 or info@appealtech.com for additional information.