Appellate Motion Practice
Appeals Lawyer on Long Island for Appellate Motion Practice
Motion Practice in the Appellate Division
Appellate litigation involves much more than simply writing a brief. The procedural rules are complex, and many appeals are lost on procedural grounds. Keeping an appeal on track may require making the appropriate motion in the Appellate Division.
If you have an appeal and are facing procedural issues, an appellate motion may be necessary. While most appeals are perfected and decided without the need for motions, the best appellate lawyers will be able to make the appropriate motion should it be necessary.
At the Law Office of J. Douglas Barics we have decades of experience in complex appeals and are well versed in appellate motion practice. Some of our most complicated appeals were resolved through strategic use of appellate motions.
Do you need representation in an appeal in the First or Second Department?
Contact us online or at (631) 864-2600.
What You Need to Know About Appellate Motion Practice
What is appellate motion practice?
Appellate motion practice are motions filed in the Appellate Division. They often involve procedural issues that must be addressed to allow the appeal to be decided, or they involve staying the order being appealed until the appeal is decided. Knowledge of appellate motions is necessary on all but the simplest of appeals.
What kind of motions are used in the Appellate Division?
The following motions are the more common types of motions used in the appellate division.
- Motion to enlarge time to perfect the appeal
- Motion for permission to appeal
- Motion to vacate the dismissal of an appeal which has not been perfected within six months of filing
- Motion for a discretionary stay of proceedings under CPLR 5519(c)
- Motion to cure non jurisdictional errors made in taking the appeal
- Motion to strike any matters de hors the record
- Motion to reargue
What is a motion to extend the time to perfect the appeal?
A motion to extend the time to perfect the way to extend the deadline after both automatic extensions are used. Unless the court sets the date by a scheduling order, every appellant has six months to perfect followed by one sixty day and one thirty day extension as of right. Once those are exhausted, additional time may only be obtained by filing a motion.
What is a motion to vacate a dismissed appeal?
A motion to vacate a dismissed appeal is the means to restore an appeal which was dismissed for failure to perfect. It must be filed within one year of the dismissal, and must show three things.
- Good cause to restore the appeal
- An intent to perfect the appeal
- That the appeal is meritorious
What is a motion for a discretionary stay of enforcement under CPLR 5519(c)?
A motion for a discretionary stay of enforcement under CPLR 5519(c) allows an appellant to seek a discretionary stay of enforcement. The motion must established all three of the following elements.
- The merits of the underlying appeal
- The balancing of the equities favors the appellant
- Irreparable harm to the appellant
What is a motion to cure omissions under CPLR ยง5520
CPLR 5520 allows non jurisdictional defects to be cured in the interests of justice at the court's discretion. These include:
- Failure to file the notice of appeal provided it was served.
- Failure to serve the notice of appeal provided it was filed.
- Failure to include the informational statement
- Referencing an incorrect entry date in the order being appealed
- A minor mistake in describing the order or judgment being appealed
- Taking the appeal from a premature paper
What is a motion to strike?
A motion to strike material improperly submitted in the record on appeal but not part of the record in the lower court is authorized.
Likewise, a motion to strike a portion of a brief which refers to material de hors the record may be made as well.
What is a motion to reargue?
A motion to reargue an appeal is made when the Appellate Division overlooks or misapprehended something in the appeal. It is not a second chance at the appeal itself and it is limited only to when the Appellate Division missed a point in the brief or misread a key point.
What kinds of motions are available in appellate motions?
- A notice of motion is always available. Under 22 NYCRR 1250, notice of motions are always returnable on Mondays at 10:00 AM.
- An order to show cause is authorized in the Second Department. They are not permitted in the First Department. Instead, a notice of motion with a request for an interim order must be used.
Is oral argument permitted in appellate motions?
Oral argument is not allowed for any appellate motion.
Contact Our Appellate Counsel Today
At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any appeal, no matter how challenging or complex. With over 20 years of appellate experience, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled appellate lawyer located in Suffolk County, call The Law Office of J. Douglas Barics.
For a free phone case consultation or to schedule an office meeting, call 631-864-2600.