Monday, February 13, 2012

I won, but my victorious decision is now being appealed. Does New York Appellate practice require that I respond?

In trial court, parties ignore motions, and other requests of the court to their detriment.  An appeal is a request by the loser to a higher court seeking a review of decisions and orders, and judgments made by a lower court judge.  Parties who ignore motions etc. in trial court will usually concede on default, the relief sought by the movant.  This is generally not the case in a New York appellate court.

An appeal is taken by filing a Notice of Appeal and the appeal is perfected when the appellant takes all steps required by the Court to get his/her case on the court’s calendar.  Generally speaking, this usually requires the submission of a record and appellant’s brief.  The burden then shifts to the appellee/respondent to file an Appellee/Respondent’s brief addressing points raised by the appellant in his/her brief. 

A New York Appellate court will generally review the record and all briefs, before deciding a case.  Although it is possible to emerge victorious even if a respondent does nothing, it is an extremely risky position to take. 

If you’re the appellee/respondent then it is safe to assume that you won the underlying basis for the appeal.  Remaining silent on the appeal allows your adversary to present arguments and support for why you should have actually lost in trial court.  If the appellate court does not hear from you, then they are free to accept the appellant’s arguments and rule against you, thereby, declaring you the loser when you thought you had won.  Remaining silent and doing nothing in a case appealed against you is precarious if you care about preserving your victory. 

If you’ve been served with an appellate brief in your case, it is strongly advisable for you contact us, or another New York Appellate lawyer of your choosing.  The time to respond to an appellant’s brief is rather short.