Understanding the Rules of the Appellate Division First Department

The Appellate Division First Department Overview

The Appellate Division First Department is the state appellate court that covers Manhattan and the Bronx. An intermediary level in the New York State court system, the Appellate Division First Department hears appeals from the Supreme Court, Surrogate’s Court, Family Court and Court of Claims. It also hears appeals from the Workers Compensation Board and the Unemployment Insurance Appeal Board. The Appellate Division First Department is also the Article 78 appellate court for appeals from Article 78 special proceedings from New York County. It also hears disciplinary proceedings against attorneys. All of the appellate justices are located in the courthouse at 27 Madison Avenue in Manhattan.
There are four branches of the Appellate Division. The First Department’s Presiding Justice is Rolando T. Acosta; his colleagues on the bench are Andrias, Moskowitz, Manzanet-Daniels, Mazzarelli, Kapnick, Kern, Friedman, Saxe, Gische, Webber, Singh, and Clark. The Appellate Division First Department has jurisdiction over civil and criminal matters. The Appellate Division has jurisdiction to review final determinations of government entities such as boards, commissions and officers, including actions brought pursuant to an Article 78 petition. Applications for a certificate of leave to appeal from the Appellate Division to the Court of Appeals are decided by the entire Court of Appeals on the basis of papers submitted to it unless oral argument is ordered .
The Appellate Division First Department has three possible options when deciding a case on appeal. An appellate court may affirm the decision at the lower appellate level without any additional comment or explanation. A written opinion may be issued if the court believes that doing so will provide guidance to lower courts and attorneys. Lastly, if the Appellate Division does not agree with the lower appellate court’s holding it may reverse the order.
Arguments before the First Department are made before a panel of justices at the courthouse. Generally, 3 judges hear the argument on the appeal. A party filing a brief with the Appellate Division is required to submit six copies of its brief along with proof of service upon all parties and the original. The briefs must be five bound, computer-generated copies for motions and appeals, excluding certain incidental motions.
One of the most important things for the First Department to do is rule on pending motions. The First Department will issue a letter to all concerned detailing its decision on motions for poor person relief, for assembly of the appellate record, or to stay enforcement of a judgment. The First Department will dismiss any motion if the motion was not served with the notice of appeal or was not received by the court before the release of an original appeal decision.

The Most Important Rules of the First Department

The Appellate Division First Department Rules effective April 15, 2014 supersede the March 27th version of these rules (as amended March 31, 2014). The Second Judicial District Appellate Division Amendment to the Rules dated March 31 2014 and the Third Judicial District Appellate Division Amendment to the Rules dated March 31 2014 substantively match this amendment with slight stylistic changes.
Rule 114.1 – Application for leave to appeal: This is the shortened version for appeals going from Supreme Court to the Court of Appeals (after 30 days from service of the order or judgment).
Rule 600.21 – Preliminary motions: This rule allows additional time to perfect an appeal upon good cause shown. "Good cause" is generally considered as, but not limited to, a "colorable claim of error".
Rule 600.23 – Settlement of statements in lieu of transcripts: This rule sets up a joint procedure to purchase the record and use it for all parties. It also sets up a procedure for agreeing to submit the appeal based on agreed upon facts.
Rule 600.26 – Notice of appeal extended to insert specific statute under which appeal is taken: This amended rule makes it clear that even if the notice of appeal states something other than the statute or paragraph pursuant to which the appeal is taken, the appellate division may be able to look elsewhere to get jurisdiction over the appeal.

An Appeal in the First Department

Filing an Appeal in the First Department begins not at the Appellate Division but, generally, at the Motion Support Center or "MSC" in the Supreme Court complex at 111 Centre Street. The MSC, which is located on the first floor of the courthouse and has been in existence only since March 2015, serves as the place where appellants should go to file any documents that might be needed to perfect an appeal, including excerpts of record as well as original briefs. Sent here instead of the Appellate Division, at least theoretically, streamlines the processing of appellate documents, since the appellate clerks will no longer need to regularly retrieve or transfer documents from the New York County Supreme Court Clerk’s office. But the MSC does not properly dispense any advice or information about the appeals process.
Unlike the other appellate departments, the first department requires appellants to submit their papers to the Appellate Division in person in order to obtain a date for the appellate argument. Simply filing or electronically filing the relevant documents is not sufficient. This can present quite an inconvenience for appellants who will be forced to travel to New York City to file their documents, as compared to appellants in the other departments who can file their appeals from the comfort of their hometowns. Further complicating matters, if an appeal originated from New York County Supreme Court, the appellant may actually have to appear at the MSC to file the documents, such as excerpts of record, in the New York County Supreme Court Clerk’s Office.
When preparing the documents for filing with the Appellate Division First Department, practitioners should keep in mind the department’s relatively strict page limits for appeals that must be strictly adhered to. Briefs may not exceed 50 pages without special permission, while excerpts cannot exceed 750 total pages for a joint appeal and 350 pages for a separate appellant. A single party is currently allowed to cite a total of 75 cases in its brief, which can also contain two appendices totaling no more than 100 pages.
Supplemental submissions are rarely given by the First Department, and they are granted solely at the discretion of the court. The department does not look favorably upon submissions that may be construed as a so-called sur-reply, especially when the specific purpose of the document is to refute the arguments presented in the appellee’s brief.

Problems Frequently Encountered in the First Department

The Appellate Division First Department will certainly be able to present some challenges and hurdles which may have to present an additional burden for the lawyer or party. For example, one common challenge which may be presented is that an appellate panel will issue a decision even before receipt of the respondent’s brief. Respondent’s in one court have found recalcitrant panelists who had no regard for a full review of the issues when an appellant was deprived of an opportunity to submit a proper memorandum of law and the First Department could be the toughest of all.
In another court, courts have had sufficient experience with the idea of the two-week extension — which is freely given upon a showing of "good cause." Therefore, as long as the Appellant complies with the Court’s rules and serves a copy of this stipulation or order on the other side, the appellate panel would be legally bound to give the defendant the full two weeks which is required by the rules. The First Department does not appear to be so patient.
Essentially, the First Department appellate court wants the lawyers and parties to comply with its rules, and, if they do not, this Court is swift to chastise them. As a matter of fact, in the 2002 and 2003 editions of the Appellate Division First Department’s Practice Rules, which has been recently distributed by this Court via an email notification to all attorneys at law who practice in the Appellate Division-Family Court in the First Department, this Court reminds lawyers that penalization and other sanctions tend to be the mainstay of failure to strictly comply with the Court’s rules. This is serious because the Appellate Division First Department tends to put its money where its mouth is and has a very loyal following of lawyers and clients who have suffered under its mandates, rules and the egregious penalties that it hands down to its opponents. Notably, success is expensive, failure is pricey and missing a filing date is the most expensive of all.

How the Appellate Division Rules Affect Outcomes

The interplay between the intricacies of appellate rules and case outcomes is undeniable. The Appellate Division, First Department has particular rules that can have a profound impact on the results of appeals in New York City. For example, part of the First Department’s apparent push toward brevity involves limits on appellate briefs to fifty pages, exclusive of appendices. Pursuant to 22 N.Y.C.R.R. § 600.10(a), a party seeking to submit an oversized brief must so move, justifying the excess with a "good cause" requirement and representing that this is not the result of dilatory tactics or poor planning. There is no page limit for reply briefs, but the movant must justify the length to the satisfaction of the Court. Some parties think they can just omit less crucial arguments or dump the contents of a losing motion for summary judgment into their brief. It rarely works. An oversized brief essentially guarantees trouble. The First Department’s "opinion" rules also can exert considerable influence on the outcome of an appeal. The Court generally issues a memorandum decision without providing legal authority at the end. Citing "case law" without including the citation or meaning of the decision in question and how it pertains to the issue at bar can be fatal. One unfortunate example of this occurred in an appeal in which I replaced prior counsel. In the brief I inherited from trial counsel, one of the arguments was that a decision by the Court of Appeals was controlling on a question of first impression. Unfortunately, the client’s prior attorneys neglected to so much as note the legal citation of the decision, let alone include its text verbatim, in the almost forty-page brief they filed with the Appellate Division. The Court of Appeals decision in question was a one-page decision composed of two sentences. As I read it on the Court’s website in preparation for our appeal, I realized it was not controlling authority and was easy to distinguish. This was especially true considering that it was at odds with other decisions issued by the same court that had gone unmentioned. These other cases created a clear split of authority , which we would need to address to make out a winning argument. My client had already taken the hit because the case was fast-tracked, so to fight another day, I had to turn the case around with the First Department. After we jumped through hoops to preserve the record for review and show that we were not guilty of dilatory tactics or poor planning, the resulting brief included a detailed analysis and discussion of the relevant case law on the issue of first impression. We further established, using the same caselaw, absent any mention of the other case, that it was easily distinguishable. This particular example involving prior counsel was important, but the procedural nuance surrounding the issue of controlling authority is often a topic covered in great detail on the First Department’s conference reports. More importantly, the idea of omitted or needlessly extensive authority shows how sloppiness in a brief absolutely can and has destroyed prevailing parties. Filling space with irrelevant caselaw, ignoring controlling authority not favorable to one’s position, and neglecting to address the ostensible basis for toning down one’s arguments so that they can fit into a mere 50 pages, can swing the case. The First Department’s conference reports are available online and are a useful tool for predicting what arguments might meet with success at appeal. Reading between the lines of the reports, one sees a clear trend. The Appellate Division, First Department is essentially enforcing the old adage that less is more: Just because you found a bunch of cases after an appeal does not mean that they go in the brief. It means you find them and put them in prior to the appeal so they are reviewed at the Appellate Division. Rosenberg v. MetLife Inc., 147 A.D.3d 50 (App. Div. 1st Dept. 2016) is a notable example. There are other rules and perceived "rules" at play in the Appellate Division, First Department, and there is even going to be a Continuing Legal Education on appellate practice. Nevertheless, my general advice can be best summed up in the immortal words of Lewis Carroll: "Begin at the beginning," in both appellate practice and the attorney-client relationship, for optimal results and preparation.

Practical Resources for Practitioners in the First Department

Although the First Department’s elaborate rules do not lend themselves to brevity, there is no shortage of other resources for practitioners involved with this appellate venue. The New York County Lawyer’s Association is the principal private Bar association in Manhattan. In the early 1990s, the NYCLA gave the Court its manuscript of the "Appellate Division Treinberg" book (which the First Appellate District expressly references in its rules). This was edited into the "NYCLA Handbook for Appellate Practitioners" by Paul R. Dubowsky, the Court’s former Principal Law Clerk (1992-2014), now a private practitioner. In addition, the Association’s "Guidelines for Appellate Counsel" and its "Guide to Appellate Practice" by former Appellate Division Justice William E. McCarthy are both useful publications for practitioners, including those involved in the First Department. The New York State Bar Association has a number of resources for local counsel, including its "Guide for Attorneys Acting Pro Hac Vice," as well as "NY Appellate Practice: A New York Practicum." Finally, for practitioners contemplating a visit to the courthouse in the First Department, there is the absolutely stellar work of Wayne M. Shoenfeld, Procedural and Ethical Issues in the Appellate Courts Volume 1, which explains many of the unknowns in these unwritten court rules.

How to Make an Effective Appeal in the First Department

Successful appeals in the First Department require an in depth knowledge of the Appellate Division First Department Rules, the New York Rules of Practice and Procedure, and the case law interpreting these rules. The rules in the First Department are a little unique compared to other appellate departments, and do not exactly mirror the rest of the state. In particular, if you provide a settlement stipulation to the Appellate Clerks after median disclosure, be sure to include the stipulation on a motion, and then again in appendices, otherwise the Court may reject it and require you to file a motion.
One thing that should be noted is that a motion to appeal off calendar almost always receives the relief sought. The fact that the operating rules of the AD1 allow for a non-pre-argument conference does not change the fact that parties can obtain the same relief through Appendix A, the self-executing calendar.
The First Department has an article on their website summarizing the rules of appellate advocacy and motion practice. There really is no substitute for reading it first before submitting papers. https://www.nycourts.gov/courts/ad1/Press/RulesandPractice.shtml
Despite all this, attorneys frequently do not follow the rules of appellate procedure, and courts grant appeals to attorneys who blatantly violate the rules. The 1990 rules do not require strict compliance for exact page limits, and parties have gone over the limits when it serves their needs . For instance, electronically submitted briefs are required to be 32 pages under the old rules, and 36 pages under the new rules, but extra pages have been allowed in some circumstances. Additionally, word limits are frequently ignored, with parties exceeding them without any repercussions. Still, electronically filed briefs must be uploaded as single documents, not numbered PDF pages.
The First Department does not dismiss appeals for noncompliance with the rules of appellate procedure. Most of the time, the First Department rules are followed, but no adverse consequences for violating them means that parties tend to proceed with abandon. Practitioners should know that violations of the rules be sanctioned. If the Appellate Division finds enough rule violations to consider sanctions, the full range of sanctions, including referral to the grivance committee are on the table. A disciplinary proceeding for failure to comply with the rules might seem excessive, but there are real penaltiees imposed for deception in court (22 NYCRR, Part 130), and no better place to hold attorneys accountable than the Appellate Division.
Oral argument in the First Department tends to last about 5-10 minutes. Practitioners should be aware of how much time they will be allowed and plan accordingly. There are currently 5 justices on the First Department bench, Justice Kapnick retired on December 31, 2018.