Most Notable Changes in New Rules

Although the new statewide Practice Rules, Electronic Filing Rules of the Appellate Division (22 NYCRR Part 1245), and local Rules of Practice of the Appellate Division, Fourth Department (22 NYCRR Part 1000) change previous appellate practice in a number of ways, the changes outlined below are the most notable of those changes. To understand all of the changes to practice in the Fourth Department, please refer to the official copies of the rules, practice guides, and forms on the Fourth Department’s website (https://ad4.nycourts.gov/rules).

General Provisions:

Consistency with other Rules. The new Practice Rules of the Appellate Division (22 NYCRR Part 1250) are to be read in conjunction with the Electronic Filing Rules of the Appellate Division (22 NYCRR Part 1245). For example, the new rules expressly acknowledge that in a matter in which e-filing is authorized, a document is deemed filed as of the time it is transmitted to the New York State Courts Electronic Filing System (NYSCEF) website. Where there is a conflict between the Practice Rules and the E-filing Rules, the E-filing Rules control (22 NYCRR 1250.1 [i]). The new local Rules of Practice of the Appellate Division, Fourth Department supplement the statewide Practice Rules and E-Filing Rules, but where there is a conflict between the local Rules of Practice of the Fourth Department and the statewide Practice Rules, the local Rules control when practicing within the Fourth Department (22 NYCRR Part 1000.1 [a]).

Filing and Service. Parties in matters not subject to e-filing may agree, in writing, to service of submissions by electronic mail, and if they do so, they shall file a copy of any such agreement with the affidavit of service (22 NYCRR 1250.1 [c] [4]).

Initial Filings. The statewide Rules of Practice require that an initial informational statement be filed and served, unless the court directs otherwise (22 NYCRR 1250.3 [a]). The local rules of the Fourth Department specifically direct that no such initial informational statement is required in the Fourth Department (22 NYCRR 1000.3 [a]).

Settlement/Mediation Program. Although the statewide Rules of Practice also allow the courts to establish a settlement or mediation program (22 NYCRR 1250.3 [c]), the Fourth Department does not have such a program (22 NYCRR 1000.3 [b]).

Motions:

The statewide Rules of Practice require that the submissions in support of a motion include proof of filing of the notice of appeal (22 NYCRR 1250.4 [a] [3]), but the Fourth Department also requires proof of service of the notice of appeal (22 NYCRR 1000.4 [a]).

Under the statewide Rules of Practice, only the original motion papers need to be filed (22 NYCRR 1250.4 [a] [2]), not the original and one copy that was required under the Fourth Department’s prior motion rules.

Perfecting, Filing and Content of Record:

Methods of perfecting. The statewide Rules of Practice allow perfection by four specific methods (22 NYCRR 1250.5): the reproduced full record method (CPLR 5528 [a] [5]), the appendix method (CPLR 5528 [a] [5]), the agreed statement in lieu of record method (CPLR 5527), or, where authorized by statute, the statewide Rules of Practice, or order of the court, the original record method.

The reproduced full record pursuant to CPLR 5528 (a) (5), perhaps the most common method of perfecting a civil appeal, must contain the items set forth in CPLR 5526 (22 NYCRR 1250.7 [b]).

The appendix method, generally used in cases in which the record is large and substantial portions of the record are not necessary to the determination of the appeal, must include “those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent” (22 NYCRR 1250.7 [d]). In the Third and Fourth Departments, the appendix must be accompanied by a digital copy of the full record (22 NYCRR 1250.9 [a] [2]).

Note: the “appendix method” of perfecting appeals pursuant to 22 NYCRR 1250.5 is not the same as the “appendix” filed in a criminal matter when permission to proceed as a poor person has been granted; the contents of such an appendix in a criminal matter in the Fourth Department, as permitted pursuant to 22 NYCRR 1250.7 (d) (3), are outlined in 22 NYCRR 1000.7 (d).

A list of case types that are allowed to be perfected upon the original record method – which includes appeals from Family Court and appeals in criminal matters – is found in 22 NYCRR 1250.5 (e).

Form and content of records/appendices. The content of records and appendices is governed by 22 NYCRR 1250.7. One particular change of note: although not previously prohibited by the Fourth Department, condensed format transcripts – which print more than one page of a transcript on a single page of the appellate record – are now prohibited unless the transcripts were submitted to the trial court in that manner (22 NYCRR 1250.7 [e]).

Certification of record or appendix. As with prior practice, a record or appendix may be stipulated to by the parties or settled by the court of original instance. In a change for the Fourth Department, the record or appendix also may now be certified by the appellant’s attorney or by the “proper clerk” (22 NYCRR 1250.7 [g]). In the Fourth Department, any dispute over the certification of the record or appendix or the contents of the record or appendix so certified shall be directed to the court from which the appeal is taken (22 NYCRR 1000.7 [b]).

Brief covers. Although the statewide Rules of Practice do not require color-coded brief covers, the Fourth Department’s local practice rules continue to require that the cover of briefs of appellants or petitioners be blue, the cover of respondents’ briefs be red, the cover of a reply brief be gray, the cover of a surreply brief be yellow, and the cover of a brief of an intervenor or amicus curiae be green (22 NYCRR 1000.8 [a]). That includes, to the extent practicable, briefs filed via NYSCEF or submitted through the Fourth Department’s website as digital copies.

Brief length. Under the statewide Rules of Practice, computer-generated briefs do not have page limits; instead, they have word limits, and parties must include a statement at the end of the brief specifying compliance with those limits (22 NYCRR 1250.8 [f], [j]).

Number of records, appendices and briefs. Unless otherwise specified, the statewide Rules of Practice require the filing of an original and five hard copies (instead of the previous original and ten hard copies) of all reproduced full records, appendices, and briefs, along with one digital copy of such records, appendices, and briefs (22 NYCRR 1250.9 [a], [c], and [d]). Digital copies of records and briefs may be filed through the Fourth Department’s website at https://ad4.nycourts.gov/dcopy. Pro se litigants are exempt from the digital copy filing requirement (both records and briefs) (22 NYCRR 1250.9 [e]).

Time for Perfection. Under the new statewide Rules of Practice, except where the court has directed that an appeal be perfected by a particular time, appeals must be perfected within six months of the date of the notice of appeal (i.e., the date on the notice of appeal) or be deemed abandoned without further order (22 NYCRR 1250.9 [a]; 1250.10 [a]), a reduction from the nine-month period for perfection previously available. The new rules do not contain the so-called “60-day rule” previously applicable in the Fourth Department, pursuant to which a respondent could make a motion to dismiss the appeal if it was not perfected within 60 days of service of the notice of appeal (see former 22 NYCRR 1000.2 [b]).

Extensions. The appellant may apply by letter for, or the parties may stipulate to, an extension of up to 60 days to perfect the appeal; the appellant may thereafter apply for another 30 day extension. Any further application for an extension to perfect must be by motion (22 NYCRR 1250.9 [b]). Respondents may apply by letter for, or the parties may stipulate to, an extension of time of up to 30 days to file an answering brief, and up to 10 days to file a reply brief. No more than two such stipulations or applications are permitted. Any further applications for extensions must be by motion (22 NYCRR 1250.9 [g]). Any motion for an extension (to perfect or to file a brief) must be supported by an affidavit demonstrating with particularity a reasonable excuse for the delay and an intent to perfect the appeal/file the brief within a reasonable time (22 NYCRR 1000.9 [a], [b]).

Oral Argument:

No rebuttal, but post-argument submissions allowed with leave of court. Under the statewide Rules of Practice, rebuttal is allowed at oral argument only in the First and Third Departments; it is not allowed in the Second and Fourth Departments (22 NYCRR 1250.15 [c] [5]). However, post-argument submissions may be made with leave of the court (22 NYCRR 1250.15 [d]), and in the Fourth Department, any such request for leave must be made in writing within five days of oral argument and must be accompanied by a copy of the proposed submission (22 NYCRR 1000.15 [e]).

Answers to Frequently Asked Questions

Timeliness and Extensions

Do the new statewide Practice Rules of the Appellate Division (22 NYCRR Part 1250) apply to my appeal that was pending on September 17, 2018?

Pursuant to the Joint Order of the Appellate Division dated June 29, 2018, 22 NYCRR Part 1250 applies to all matters pending before the court on September 17, 2018 “unless otherwise ordered by the Court upon a showing that the application of Part 1250 to the matter would result in substantial prejudice to a party or would be manifestly unjust or impracticable under the circumstances.”

My appeal was deemed dismissed because it was not perfected by September 17, 2018, even though I had more time to perfect the appeal under the former rules of the Fourth Department. What should I do?

You should move to vacate the dismissal pursuant to 22 NYCRR 1250.10 (c). Such a motion may be made within one year of the date of dismissal, and the movant shall submit in support thereof an affidavit setting forth good cause for vacatur of the dismissal, an intent to perfect the appeal within a reasonable time, and sufficient facts to demonstrate a meritorious appeal. In addition, you could move to vacate the dismissal on the ground that the six-month perfection period under 22 NYCRR Part 1250 should not apply to your appeal because your appeal could have been perfected at a later time under the former rules applicable to your appeal, and it would be manifestly unjust, substantially prejudicial, or impracticable to apply the perfection deadlines under 22 NYCRR Part 1250 to your appeal (see Joint Order of the Appellate Division dated June 29, 2018).

I need an extension of time to perfect my appeal. How do I get that?

Pursuant to 22 NYCRR 1250.9 (b), except where the court has directed that the appeal be perfected by a particular time, the parties may stipulate, or in the alternative an appellant may apply by letter, on notice to all parties, to extend the time to perfect an appeal up to 60 days. Such a stipulation or letter application shall include a copy of the notice of appeal with proof of filing and service, and a copy of the order appealed from, along with proof of service of the letter application (proof of service is not required for a stipulation). The copy of the notice of appeal and order appealed from evidence the fact that there is an appeal pending that invokes the jurisdiction of the Court.

After the first application or stipulation for an extension of time, the appellant may thereafter file a letter application (with proof of service only) for an additional 30-day extension of time to perfect. Any further application for an extension of time to perfect must be made by motion.

If I mail a brief or record to the court on the day it is due, is that timely filing?

No. 22 NYCRR 1250.1 (c) provides that all records, briefs, appendices, motions, and other papers that are not filed electronically via NYSCEF must be physically received and stamped by the court in order to be deemed filed, and any such document must be accompanied by proof of service upon all necessary parties pursuant to CPLR 2103.

Digital Copies, Electronic Filing and Faxes

The new Rules of Practice require me to submit digital copies of records and briefs. How do I do that?

Digital copies of records and briefs required to be filed pursuant to 22 NYCRR 1250.9 should be uploaded through the court’s website at ad4.nycourts.gov/dcopy.

Is filing digital copies the same as electronic filing?

No. Electronic filing required pursuant to 22 NYCRR Part 1245 is accomplished by establishing an account with, and filing documents through, NYSCEF. The rules governing electronic filing in the Appellate Division and the LOGIN to NYSCEF are found at ad4.nycourts.gov/efile.

Digital copies required to be filed by 22 NYCRR 1250.9 must be uploaded through the court’s website at ad4.nycourts.gov/dcopy.

What matters must be electronically filed through NYSCEF?

As of October 1, 2018, the following categories of appeals and proceedings must be e-filed with the court: (1) all appeals in matters arising in, or transferred to, the Commercial Division of Supreme Court; (2) all appeals in matters arising in, or transferred to, Surrogate’s Court; and (3) all appeals in matters that were e-filed in Supreme Court. Voluntary e-filing in most categories of civil appeals will begin on January 1, 2019, and it is expected that the categories of cases subject to e-filing will continue to expand in the coming months.

The must up to date listing of case types subject to electronic filing in the Appellate Division and the LOGIN to NYSCEF are found at ad4.nycourts.gov/efile

May I file documents via fax?

There is no mechanism under the new Rules of Practice for filing of a brief or motion papers via facsimile.

Briefs

Can I attach outside materials to my brief?

Pursuant to 22 NYCRR 1250.8 (k), briefs may include addenda, but those addenda must be “composed exclusively of decisions, statutes, ordinances, rules, regulations, local laws, or other similar matter cited therein that were not published or that are not otherwise readily available.”