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Appellate Division Second Judicial Department

How do I take an appeal?

When must a notice of appeal be filed or motion for leave to appeal be made?

Where and how do I serve and file a notice of appeal?

When a notice of cross appeal is filed in the court of original instance, is it necessary to file a Request for Appellate Division Intervention?

Where and how do I make a motion for leave to appeal?

How do I perfect an appeal?

What is the difference between the full record method and the appendix method of perfecting an appeal and why would I choose to use one rather than the other?

How much time do I have to perfect my appeal?

If I run out of time to perfect or to file a brief, how can I ask for more?

What are cross appeals and concurrent appeals?

What is the schedule for filing a respondent's answering brief and an appellant's reply brief?

Can the parties to an appeal stipulate to omit matter from or add matter to the material that constitutes the record on appeal from an order or judgment?

How many copies of records or appendices and briefs must be served and filed?

How do I withdraw a pending appeal or proceeding?

When and where does the court convene?

I want to orally argue my appeal. How do I notify the court of my intention to do so?

If I request oral argument and then change my mind, do I have to notify the court?

What are the time limits for oral argument?

How can I find out if my case or motion has been decided and obtain a copy of the decision?

What court fees can I expect to pay in connection with an appeal or special proceeding in the Appellate Division?

Where is the Second Department and which courts does it hear appeals from?





Q: How do I take an appeal?

Some orders and judgments are appealable as of right, others only by permission. Appeals as of right are taken by serving and filing a notice of appeal. Permission to appeal is obtained by making a motion for that relief.


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Q: When must a notice of appeal be filed or motion for leave to appeal be made?

In a civil case pending in the Supreme Court or Surrogate's Court, a notice of appeal must be served and filed in the office of the clerk of the court of original instance (e.g. Supreme Court) within 30 days after service upon the appellant of a copy of the order or judgment to be appealed with written notice of its entry, or, if the appellant has served the order or judgment with notice of its entry, within 30 days of that service.  Entry of an order or judgment is usually performed automatically by the clerk of the court of original instance; however, the clock to file a notice of appeal begins to run only upon the service of a notice of that entry.  Litigants and practitioners who prevail on a motion or at trial are well served to serve that order with notice or entry or risk that the notice of appeal clock run perpetually.

 

A motion for permission to appeal must be made within the same time limits and, if permission to appeal has already been denied by order of the court whose determination is sought to be reviewed, within 30 days after service of that order and notice of its entry.

An appeal from the Family Court must be taken (1) within 30 days after service by a party or a law guardian upon the appellant of the order sought to be reviewed, (2) within 30 days after receipt by the appellant of a copy of the order in open court, or (3) within 35 days after mailing of the order to the appellant by the clerk, whichever is earliest.

An appeal from the Court of Claims must be taken within 30 days after service by a party of the order or judgment sought to be reviewed with notice of its entry, or within 30 days after service upon the appellant of a certified copy of the order or judgment by the clerk of the court.


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Q: Where and how do I serve and file a notice of appeal?

An appeal as of right is taken by serving a notice of appeal on the adverse party and filing it in the office where the judgment or order of the court of original instance is entered.  In the Second Department two additional copies of the notice of appeal must be filed, to each of which must be affixed a form called a Request for Appellate Division Intervention, a copy of the order or judgment appealed from, and a copy of the opinion or decision, if any


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Q: When a notice of cross appeal is filed in the court of original instance, is it necessary to file a Request for Appellate Division Intervention?

Yes


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Q: Where and how do I make a motion for leave to appeal?

Whether an order or judgment is appealable by permission and what court is authorized to grant permission varies depending on the court in which the action originated, the courts from and to which the appeal is to be taken, and the nature of the order or judgment appealed from. A person who desires to appeal must check the statutes governing appeals from and to those courts.


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Q: How do I perfect an appeal?

After an appeal is taken by filing a notice of appeal or obtaining leave to appeal, it must be "perfected". Perfecting an appeal means doing all the acts necessary to place the case on the court's calendar.  There are several different methods by which appeals may be perfected.  If you’ve filed  a notice of appeal and need to perfect an appeal, we urge you to contact an attorney soon.  Perfecting an appeal is complex process.


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Q: What is the difference between the full record method and the appendix method of perfecting an appeal and why would I choose to use one rather than the other?

The full record method involves the reproduction of all the materials that constitute the record. It is used where the issues to be raised on the appeal require the examination and consideration of all those materials. The appendix method, on the other hand, is used where the issues to be raised on the appeal are limited and do not require examination of all the materials constituting the record; material that is not germane to the issues to be raised may be omitted from the printed appendix.


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Q: How much time do I have to perfect my appeal?

In civil cases an appeal must be perfected within six months of the date of the notice of appeal or order granting leave to appeal.  In criminal cases an appeal by the defendant must be perfected within nine months from the date of the notice of appeal, unless a motion for assignment of counsel to prosecute the appeal is made within that time.


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Q: If I run out of time to perfect or to file a brief, how can I ask for more?

A party who needs more time to perfect or to file a brief must obtain an enlargement of time to do so.  In a civil matter it is imperative that this request is made before the time expires.


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Q: What are cross appeals and concurrent appeals?

A cross appeal is an appeal taken by a party whose interests are adverse to a party who previously appealed from the same order or judgment. Concurrent appeals are those appeals that are separately taken from the same order or judgment by parties whose interests are not adverse to one another but rather to those of another party.  


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Q: What is the schedule for filing a respondent's answering brief and an appellant's reply brief?

A respondent must serve and file an answering brief within 30 days after service of the appellant's brief and an appellant may serve and file a reply brief within 10 days after service of the respondent's answering brief.  If the last day of such a period is a Saturday, Sunday, or a public holiday, service and filing may be made on the next succeeding business day.


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Q: Can the parties to an appeal stipulate to omit matter from or add matter to the material that constitutes the record on appeal from an order or judgment?

Parties cannot stipulate to add to or subtract from the material specified by the statute. The parties may stipulate to omit the reproduction of exhibits in a printed record or appendix but the originals of those exhibits, unless of a bulky or dangerous nature, must be filed with the clerk at the time the appellant's brief is filed. 


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Q: How many copies of records or appendices and briefs must be served and filed?

Where the full record method or the appendix method is used to perfect an appeal, the appellant must serve two copies of the record or appendix and the brief on each adversary and file nine copies with the court. Where the original papers method is used, only one copy of the brief need be served on each adversary; however, nine copies must still be filed with the court. The same principle applies to answering and reply briefs.


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Q: How do I withdraw a pending appeal or proceeding?

An appellant may withdraw an unperfected appeal or proceeding by sending a letter to the court, with a copy to all other parties, requesting that an order be issued to that effect. If the appeal or proceeding has been perfected, an appellant must either make a formal motion on notice for leave to withdraw it, or must submit a stipulation signed by all parties consenting to the withdrawal.


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Q: When and where does the court convene?

The court convenes in the courtroom of its courthouse, located at 45 Monroe Place in Brooklyn, at 10 a.m. on Monday, Tuesday, Thursday, and Friday.


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Q: I want to orally argue my appeal. How do I notify the court of my intention to do so?

A request for argument is made by placing a notation on the upper right hand corner of the cover of the party's main brief stating whether the cause is to be argued and, if so, the time actually required for argument and the name of the attorney who will argue.


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Q: If I request oral argument and then change my mind, do I have to notify the court?

A party who originally elected to argue may elect to submit the case without argument. By custom, if a party who has asked for argument does not answer at the call of the calendar, the cause will be marked submitted by that party


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Q: What are the time limits for oral argument?

The maximum time allowed for argument is 30 minutes for each party who has filed a brief on appeals from orders or judgments made after a trial or hearing, appeals from orders of the Appellate Term, and original special proceedings to review an administrative determination made after a hearing. All other cases are limited to 15 minutes for each party who has filed a brief, except that certain issues are not arguable at all, e.g., maintenance, spousal support, counsel fees, and excessiveness of sentence.


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Q: How can I find out if my case or motion has been decided and obtain a copy of the decision?

The text of the court's decisions for the past several months are available on their website at http://www.nycourts.gov/courts/ad2/index.shtml


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Q: What court fees can I expect to pay in connection with an appeal or special proceeding in the Appellate Division?

A fee of $65 is payable to a county clerk for filing a notice of appeal in his or her office. The fee to perfect a civil appeal or to file the papers commencing a special proceeding in the Appellate Division is $315. The fee to file a motion or cross motion with respect to a civil appeal or special proceeding is $45. All these fees are payable in advance of the filing of the papers in question.


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Q: Where is the Second Department and which courts does it hear appeals from?

The Appellate Division – Second Judicial Department - is located at 45 Monroe Place in the Brooklyn Heights Historic District of downtown Brooklyn.  The Second Department hears appeals from courts in Queens (Queens County), Brooklyn (Kings County), Staten Island (Richmond County), Long Island (Nassau County, Suffolk County), Dutchess, Orange, Putnam, Rockland, and Westchester Counties. 


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Amed Marzano & Sediva PLLC Appellate Attorneys assist clients in New York and Connecticut with all their appellate needs including Matrimonial/Family law Appeals, Estates and Trust Law Appeals, Commercial Law Appeals, Real Estate Law Appeals, International Appeals, and Litigation. We serve all of New York City and the surrounding area, including but not limited to Manhattan, Brooklyn, Queens County, Kings County, Bronx, Yonkers, Staten Island, Westchester County, New York County, Hudson County, Suffolk County, Nassau County, Upper New York, and all of NY and CT.



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