Motion Practice in the Appellate Division

While it may not be obvious to those who rarely practice within the Appellate Division, motion practice in an appeal can be an integral part of post trial litigation. The following is a non exhaustive list of motions that are brought before the appellate division.

• Motion to enlarge time to perfect the 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 enlarge the record
• Motion to strike any matters de hors the record

Motion to enlarge the time to perfect the appeal

The most common motion is a motion to enlarge time to perfect the appeal.

Motion to vacate a dismissed appeal not perfected within six months

Since 2018, motions to vacate a dismissal are growing in number. Since 2018, the Appellate Division tracks appeals very differently than prior to the adaptation of rule 1250. Under the old rules, missing the deadline to perfect an appeal meant the appeal was still alive but it could not be perfected unless the deadline was extended. Unperfected appeals were dismissed in calendar sweeps at a later date. Under the new rules, appeals are dismissed if they are not perfected on the due date and a motion to vacate the dismissal is now required.

Motion for a discretionary stay under CPLR 5519(c)

A motion for a discretionary stay of enforcement pending the appeal is another common motion.

 

For more information and details on 5519 motions, see the article: Motion for Discretionary Stays

 

Motion to cure non jurisdictional errors under CPLR 5520

Non jurisdictional errors in the notice of appeal can be corrected by a motion made pursuant to CPLR 5520.

Appealing from the wrong paper is not always fatal, a motion can be made under CPLR 5520 to treat the appeal as a premature appeal, which can be granted or denied at the Court's discretion.

 

Motion to enlarge the record

A motion to enlarge the record is another common application made in appellate practice. When an appeal is prosecuted by the appendix method and the non appealing side needs material that is not in the appendix, an enlargement of the appendix may be requested. Likewise if a portion of the records is inadvertently omitted in an appeal being prosecuted by the full record method, a motion to enlarge the record to add the missing information may be filed.

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.

 

These motions are only an example of the most common types of motions made in appellate practice and other types of motions may be made as circumstances dictate.

 

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