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Motion Practice in the Appellate Division

By J. Douglas Barics
Updated October 2019

1. Motion Practice in the Appellate Division

Motions in all four Appellate Divisions are governed by 22 NYCRR 1250.4. All motions are returnable at 10:00 a.m. on any Monday, and shall be filed with the clerk at least one week before the return date. Every motion must include a copy of the order or judgment under appeal, the decision giving rise to the judgment, and the notice of appeal with proof of filing. Notice is governed by CPLR 2214(b) and CPLR 2103. Answering papers must be served in accordance with the times set in CPLR 2214(b) and the originals filed by 4:00 p.m. of the business day preceding the return date of the motion. Since motions are mandated to be returnable on Mondays, that means responding papers are due on Friday. Cross motions must be made returnable the same day as the original motion and are to be served at least three days in advance either by personal or overnight service.

One adjournment is allowed of either 7 or 14 days upon consent.

2. Types of Appellate Motions

The following is a list of common motions. It is not exhaustive.

a. Motion to Enlarge the Time to Perfect an Appeal

A motion to enlarge is a request for an extension of time to perfect a brief. Under the new rules effective September 2018, a motion to enlarge must be made prior to the date the appeal is due, as the appeal is now dismissed on that date if not perfected.

b. Motion to Vacate Dismissal

A motion to vacate a dismissed appeal due to lack of perfecting it in time may be made up to one year after the dismissal. It must include an intent to perfect the appeal, that it is a meritorious appeal, and the reason why it was not perfected.

c. Motion for a Discretionary Stay of Enforcement

A motion for a discretionary stay of enforcement must include three elements. (a) the likelihood of success on the merits, (b) irreparable harm, and (c) balancing of the equities. All three must be met by the moving party to be granted a stay of enforcement.

>d. Motion to Strike

If a brief references facts which are outside the record, a motion to strike that portion of the brief may be made and if granted, the Appellate Division will not consider those portions struck.

e. Motion for a Supplemental Record

A supplemental record may be filed if a portion of the record was inadvertently omitted.

f. Motion to Reconsider

A motion to reconsider a decision is authorized. Such motions rarely prevail. The primary function of this type of motion is when the Appellate Division does not address all relief requested or if a critical fact is misunderstood by the Court.

g. Motion for a Replacement Brief

These motions are rarely made and even rarer to be granted. If a wrong draft of the brief is submitted, a corrected final version may be submitted in its place. Any substantial changes will likely lead the motion to being denied.

h. Motion to Dismiss Appeal

A motion to dismissal an appeal may be made to dispose of an appeal prior to the decision on the appeal. Many times the appellate division will defer these motions to the decision, but such motions are permitted. Some of the more common reasons why a motion to dismiss may be entertained include the following.

  • The appeal is taken from a decision and not a judgment
  • The appeal is taken from a bench ruling and was not "so ordered"
  • The appeal is taken from a denial to reargue. Note that a motion granting reargument adhering to the original determination is appealable.
  • An order which disposed of only a portion of the relief requested in a motion is not appealable as of right. Permission is needed.
  • If the appealing party is not aggrieved under CPLR 5511, the appeal may be dismissed due to a lack of standing.
  • The appeal is taken from a default order. Default orders are not appealable. However, when a default order which is only partially on default may be appealed for those issues which were litigated.
  • An interlocutory order will be dismissed upon issuance of the final judgment

 

i. Motion to Cure a Premature Appeal or Other Non Jurisdictional Errors

CPLR 5520 allows the Appellate Division to cure numerous defects provided they are not jurisdictional. An appeal from a decision may be treated as a premature appeal from the judgment under CPLR 5520. The failure to file the notice of appeal is curable if it is served, and the failure to serve a notice of appeal is curable if it is filed. Ministerial errors in the notice of appeal may also be cured under CPLR 5520.

j. Motion for Interim Relief or a Stay of Enforcement

When Interim Relief is requested, or if an application is being made under CPLR 5704 must be made in person, and the motion must include the nature of the motion, the specific relief sought and the names addresses, telephone numbers and email addresses for all attorneys in the cause. The party seeking the interim relief must give reasonable notice of the day, time and location of the request for interim relief, including the relief sought and the interim relief requested. If known, the position of the opposing party should be stated. Any response is due on the return date by 10:00 a.m. and no reply is allowed.

About J. Douglas Barics
J. Douglas Barics is an appellate attorney located in Commack NY who regularly represents individuals in appeals.

For Additional Information
If you have any questions about this article, please contact J. Douglas Barics

Disclaimer: The article "Motion Practice in the Appellate Division" is provided as a free educational service and does not constitute legal advice.  For more information see the full disclaimer.