| January 17, 2013
Appellate Division First Department Reminder
We would like to remind our clients about a section of the Appellate Division First Department rules that seems to get overlooked at times. One of the reasons why 600.17 (Pre-argument Conference)
is overlooked at times is because the rule itself is at the end of the First Department rules and not in the beginning where it probably should be. Some of the rules that come before 600.17 is the time to perfect, deadlines to file briefs and the time to reargue an appeal or move onto the Court of Appeals. The reason why it should be towards the beginning is that two items should be paid attention to when docketing a Notice of Appeal going to the First Department. First, a reminder should be added for any party to the appeal to ask for a preargument conference if one has not been set 20 days after the filing the Notice of Appeal.
Second, one should be very careful when the court does set a conference because the court allows the respondent a very small window to file a counter preargument statement. The notice setting a prearguement conference is sent out by regular mail, but the time to file the counter statement runs 10 days from when the court issues the order. By the time the mail arrives to the office you might be down to a few days to file the counter statement. The mail from the court should be addressed to the firm in which the party counsel was listed on the appeal. If an individual name was listed along with the firm name it will most likely go straight to that person and if the firm name was only listed that might go through a number of hands at a firm before it arrives in the right place. Please alert the entire team as for this mailing in the event some members of the team are away from the office.
One further reminder when filing the counter preargment is to set forth the extent to which respondent challenges the assertions made by appellant in the preargument statement. The statement also must include an explanation of grounds for granting the relief sought by respondent. We would like to provide section 600.17 below for you to review when you have a chance.
§ 600.17 Pre-argument Conference
a. In every civil case (except one originating in Family Court) in which a notice of appeal is filed or an order granting leave to appeal to the Appellate Division entered, or an order transferring an Article 78 proceeding to the Appellate Division is entered, counsel for the appellant or petitioner shall file, together with the above, a pre-argument statement, proof of service and, where applicable, a copy of the opinion or short form order which contains a memorandum.
b. The preargument statement must set forth:
1. Title of the action;
2. Full names of original parties and any change in the parties:
3. Name, address and telephone number of counsel for appellant or petitioner;
4. Name, address and telephone number of counsel for respondent;
5. Court and county, or administrative body from which the appeal is taken;
6. Nature and object of the cause of action or special proceeding (e.g., contract-personal services, sale of goods; tort — personal injury, automobile accident, malpractice, equity — specific performance, injunction, etc.);
7. Result reached in the court or administrative body below; and
8. Grounds for seeking reversal, annulment or modification.?Where appropriate, the statement must indicate whether there is any related action or proceeding now pending in any court of this or any jurisdiction, and if so, the status of the case. If an additional appeal is pending in the same action, indicate the date of entry of the order or judgment and attach a copy of the notice of appeal of the preargument statement.
c. The notice of appeal, or the order granting leave to appeal, or the order transferring the case to the Appellate Division shall be filed by the appellant in duplicate in the office where the judgment or order of the court of original instance is entered.
d. The clerk of the court from which the appeal is taken shall promptly transmit to the Appellate Division the pre-argument statement and a copy of the notice of appeal or order granting leave or transferral.
e. By order of the Court, counsel and the parties to the actions may be directed to attend a preargument conference before a judicial administrative officer or such other person as may be designated by the Appellate Division.
f. Should a preargument conference not be scheduled within 20 days after the filing of a notice of appeal, any party to the appeal or Article 78 proceeding may apply to the Court to have such a conference.
g. Within 10 days after an order directing a preargument conference has been entered, counsel for respondent must file with the court a counter preargument statement together with proof of service. The counter statement must set forth the extent to which respondent challenges the assertions made by appellant in the preargument statement. The statement also must include an explanation of grounds for granting the relief sought by respondent.
h. Any attorney who, without good cause shown, fails to file the materials listed in subdivisions (a) or (g), fails to timely appear for a scheduled conference, fails to abide by the terms of a stipulation or order entered following a preargument conference or fails to demonstrate good faith during the preargument process shall be subject to such sanctions as justice of the court may direct.
i. Upon the conclusion of the conference, if the parties have entered into a stipulation the Court shall file an order of approval.
CourtAlert services from Appellate Division First Department (“AD1”) data:
- Watch services for appeal and motion decisions by the case trial index number.
- Watch service for oral argument date, by name of parties. The user can enter any number of alternate spelling for the party name
To review and add a case to the AD1 watch list
- Optional/Information alert of the AD1 Panel with link to judges bio information.
- Optional alert of AD1 decision list - list of all decision and text of decision as soon as they are published
To review and change your optional/information alert setting
- Reminder that an appeal is due to be perfected soon. When a case in on NYS Supreme/NY County watch, CourtAlert 88 will alert you a few weeks before the end of the 9-month period allowed to perfect an appeal.
Information on all new Notice of Appeals and perfected appeals is available by special request.
Thank you National Docketing Association:
We would like thank the National Docketing Association for sponsoring our national demonstration of ECF Assurance. This well attended remote WebEx demo was very well attended.
ECF Assurance is your tool to verify that no ECF email on any US Federal case, nationwide, is missed. The service compares the notices you receive on electronically filed cases with the PACER dockets. The cost to assure any US District, MDL or Circuit court on a weekly basis is $143 per case per year, more for Bankruptcy courts.
To learn more about the service or ask for demo
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Izzy Schiller, President
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