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Appeals

Appeals

An appeal is a request for a higher court to review a court order for errors and to decide if these errors warrant a different outcome.  The Appellate Division will have the exact same evidence that the trial court did, and the side taking the appeal is required to show where the errors, explain why they are errors, and argue why these errors affected the court's disposition of the underlying matter.

An appeal is not a new hearing, and no new evidence can be introduced in an appeal. That means that the fundamental approach in an appeal is very different than the approach used at the trial level.

Prosecution of Appeals

If you are not happy with the outcome of your case, an appeal is an option.

Appeals must be taken within thirty days of the notice of entry of the judgment or order being appealed. That starts the six month clock running to complete the appeal. Under the new rules which went into effect September 18, 2018, an appeal which is not completed within that six month time frame is automatically dismissed.

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Defense of Appeals

If you are defending an appeal, you need an attorney with experience in appellate litigation. Looking for procedural errors in the appeal could get it dismissed.

Beyond procedural defenses is identifying key weaknesses in the framework of the issues on appeal. Shifting the framework from law to discretion gives the defending side a significant advantage when the merits of the appeal are reached.

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Cross Appeals

A cross appeal occurs when both sides seek to appeal a trial court order or judgment. Cross appeals present a very different set of dynamics than when only one side appeals, as the non appealing party normally has the status quo in his or her favor. This framework is absent in cross appeals.

Cross appeals are often warranted, but they fall into a different category than an appeal or a defense of an appeal.

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Stay of Enforcement under CPLR 5519

A stay of enforcement is a request to have an order which prevents enforcing the order or judgment being appealed. In some instances this stay may be automatically granted. If an automatic stay of enforcement is not available, then a motion for a discretionary stay of enforcement can be requested by a motion.

 

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Motion Practice in the Appellate Division

It may not be apparent, but motion practice in the Appellate Division is an important part of appellate practice. The two most common motions are motions to enlarge the time to perfect an appeal, and a motion for a discretionary stay under CPLR 5519(c).  However, understanding what motions are available and the reasons why they are authorized is an critical to prosecuting or defending an appeal

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Reach out if you have any questions