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Appellate Motion Practice

Motion Practice in the Appellate Division

While it may not be obvious at first, motion practice in the Appellate Division can be a critical aspect of appellate practice.

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

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.

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

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.

A motion to enlarge the record is another common motion. When a good faith appendix is made and the other side needs the appendix to be enlarged, it is done by motion.

A motion to strike material 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.

Other types of motions may be made as well as circumstances dictate.

Reach out if you have any questions

J. Douglas Barics
Attorney at Law

356 Veterans Memorial Highway
Suite 3
Commack, NY 11725

Phone: (631) 864-2600

Fax (631) 543-2888



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