September 17, 2018 - New Rules – On Guard!

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While most conscientious appellate practitioners have long-since set a calendar alert for September 17, 2018, marking the effective date for the sweeping changes ushered in by the new "Practice Rules of the Appellate Division" (22 NYCRR Part 1250), most trial practitioners remain blissfully ignorant of exactly how much the landscape will change at the appellate level.

These changes will unify appellate-litigation practice among the four judicial departments, providing uniformity concerning issues such as electronic filing, perfection requirements, informational statements, deadlines, extension requests, motions and myriad other arcane areas of appellate practice. While most of these changes will not have a dramatic impact upon trial practitioners, there is one upcoming change which must be noted and immediately addressed by everyone who has filed a notice of appeal in the First Judicial Department over the past nine months.

That is, trial practitioners must be aware that, effective September 17, 2018, the perfection deadlines across the four judicial department uniformly will be six months from the date on the face of the notice of appeal (see, 22 NYCRR 1250.9 Time, Number and Manner of Filing of Records, Appendices and Briefs). This new rule, of course, represents a significant reduction in the time period allotted for the perfection of appeals in the First Judicial Department, which had historically allowed for nine months.

More importantly, the new Appellate Division Rules also include a provision which establishes that the failure to meet this six-month deadline will result in dismissal of the appeal (see, 22 NYCRR 1250.10 Dismissal of a Matter: "(a) Civil Matters. In the event that an appellant fails to perfect a civil matter within six months of the date of the notice of appeal, the order of transfer, or the order granting leave to appeal, as extended pursuant to section 1250.9(b) of this Part, the matter shall be deemed dismissed without further order [emphasis supplied]."

The combination of these two new Rules engenders a pitfall for the unwary trial practitioner who may be sitting on a notice of appeal which was filed prior to March 14, 2018. Not only will that appeal become untimely the moment the new rules take effect on September 17, 2018, but the appeal will be subject to immediate dismissal without further order.

To all those trial practitioners with notices of appeal pending in the First Department, I say: On guard!

If you cannot perfect your appeal on or before September 14, 2018, make an enlargement motion and protect your client's rights. If September 14, 2018 comes and goes, you will be required to make a motion to vacate the dismissal of the appeal, in connection with "the movant shall submit an affidavit setting forth good cause for vacatur of the dismissal, an intent to perfect the appeal or proceeding within a reasonable time, and sufficient facts to demonstrate a meritorious appeal or proceeding" (22 NYCRR 1250.10).

Don't let it happen to you.