APPEALS
Published on Dec 11, 2015
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MORE DECKS TO EXPLORE
PRESENTATION OUTLINE
topics
- sources of law
- when to appeal
- what to appeal
- stays
- mechanics
- alternatives
- appellate division
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why appeal?
1. change the outcome for your client
2. affect policy
3. educate a judge
4. demonstrate your tenacity to an adversary
office resources?
your caseload?
are there ethical issues?
2. affect policy
3. educate a judge
4. demonstrate your tenacity to an adversary
office resources?
your caseload?
are there ethical issues?
Photo by Onasill ~ Bill Badzo
chance of success
on appeal?
sources of law
A. CPLR 5500 et.seq.i CPLR 5700 et .seq., CPLR 1101 et.seq.
B. N.Y.C.C.A. 1701 et. seq., 1910, 1911, 1914
C. . 22 NYCRR 640 et. seq .
D. 22 NYCRR 731 et. seq .
E. 22 NYCRR 600 et . seq.
F. 22 NYCRR 670 et. seq.
B. N.Y.C.C.A. 1701 et. seq., 1910, 1911, 1914
C. . 22 NYCRR 640 et. seq .
D. 22 NYCRR 731 et. seq .
E. 22 NYCRR 600 et . seq.
F. 22 NYCRR 670 et. seq.
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the court system
how it is structured
civil court
appellate term
appellate division
court of appeals
the departments
appellate term first- NY and Bronx
appellate term second- 2nd and 11th - kings, SI, and Queens; 9th and 10th upstate
every appellate term justice is an elected Supreme Court justice chosen by the chief administrator
appellate term
appellate division
court of appeals
the departments
appellate term first- NY and Bronx
appellate term second- 2nd and 11th - kings, SI, and Queens; 9th and 10th upstate
every appellate term justice is an elected Supreme Court justice chosen by the chief administrator
CPLR 5501
a final judgment may be appealed
when a final judgment is appealed, any non final judgment or order affecting the final judgment may be reviewed.
5501(d) the appellate term reviews questions of LAW and FACT
when a final judgment is appealed, any non final judgment or order affecting the final judgment may be reviewed.
5501(d) the appellate term reviews questions of LAW and FACT
appealing interim orders
CIVIL COURT ACT 1702((a)(1)
appeal as of right- from any final or interlocutory judgment'
from an order made on notice which grants, refuses, continued or modifies a provisional remedy, settles grants or refuses an application to resettle
key question- would a successful interlocutory appeal overturn the final judgment? if so, it is an appealable order
typically, one would seek a stay of the proceeding pending an interlocutory appeal. not often granted.
things not appealable
- stipulations
- orders on default
- orders to show cause
- moot issues
- decisions with no orders
- unwritten orders
unpreserved issues
not ripe for appeal
an appellate court may not consider issues for the first time on appeal legal issues unpreserved below.
defects and errors should be raised at the lower court
defects and errors should be raised at the lower court
CPLR 5704(b)
(b) By appellate term. The appellate term in the first or second
judicial department or a justice thereof may vacate or modify any order
granted without notice to the adverse party by any court or a judge
thereof from which an appeal would lie to such appellate term; and such
appellate term may grant any order or provisional remedy applied for
without notice to the adverse party and refused by any court or a judge
thereof from which an appeal would lie to such appellate term.
caveats-
if signed, case goes back to original housing court judge
-when might you do this?
judicial department or a justice thereof may vacate or modify any order
granted without notice to the adverse party by any court or a judge
thereof from which an appeal would lie to such appellate term; and such
appellate term may grant any order or provisional remedy applied for
without notice to the adverse party and refused by any court or a judge
thereof from which an appeal would lie to such appellate term.
caveats-
if signed, case goes back to original housing court judge
-when might you do this?
standards of appeal
- findings of fact are upheld under any fair interpretation of the evidence
- abuse of discretion/interests of justice
stays
pending appeal
cplr 5519(C) THE COURT FROM OR TO WHICH AN APPEAL IS TAKEN OR THE COURTOF ORIGINAL INSTANCE MAY ISSUE A STAY- STAY MAY BE SOUGHT BE MOTION AND AFFIDAVIT OR AFFIRMATION
UNDERTAKINGS
cplr 5519(d)
payment or posting of judgment and accrued arrears to maintain the status quo
if the appellant fails to comply, the other side may move to vacate the stay and dismiss the appeal
if the appellant fails to comply, the other side may move to vacate the stay and dismiss the appeal
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taking the appeal
- filing notice of appeal
- poor persons relief
- settling transcript
- clerk's return
- producing the record
the notice of appeal
must be filed within 30 days after the prevailing party serves the order or judgment.
CPLR 2220
if the order or judgment is served by mail, add 5 days for mailing
THE TIME REQUIREMENT MAY NOT BE WAIVED, EXTENDED EVEN ON CONSENT.
IF THE NOTICE OF ENTRY IS NEVER SERVED, THE ONLY TIME BAR IS LACHES.
NOTICE OF APPEAL MUST BE SERVED ON THE ADVERSE PARTY WITH PROOF OF SERVICE- FILING FEE OR POOR PERSONS
WHAT TO INCLUDE
CAPTION, COPY OF JUDGMENT OR ORDER BEING APPEALED; EVEN IF ONLY APPEALING PART OF AN ORDER, STATE THAT YOU ARE APPEALING "EACH AND EVERY PART"
CPLR 2220
if the order or judgment is served by mail, add 5 days for mailing
THE TIME REQUIREMENT MAY NOT BE WAIVED, EXTENDED EVEN ON CONSENT.
IF THE NOTICE OF ENTRY IS NEVER SERVED, THE ONLY TIME BAR IS LACHES.
NOTICE OF APPEAL MUST BE SERVED ON THE ADVERSE PARTY WITH PROOF OF SERVICE- FILING FEE OR POOR PERSONS
WHAT TO INCLUDE
CAPTION, COPY OF JUDGMENT OR ORDER BEING APPEALED; EVEN IF ONLY APPEALING PART OF AN ORDER, STATE THAT YOU ARE APPEALING "EACH AND EVERY PART"
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CPLR Chapter 55
read it
perfecting
the appeal
perfecting means doing everything required to put the case on the court's calendar
time to perfect begins to run from the day the notice of appeal is filed
failure to perfect results in dismissal with prejudice
appellant may move to enlarge the time to perfect. one extension is routinely granted.
time to perfect begins to run from the day the notice of appeal is filed
failure to perfect results in dismissal with prejudice
appellant may move to enlarge the time to perfect. one extension is routinely granted.
the record
on appeal
its the entire original court file.
transcripts- 5525 b
transcripts- 5525 b
the appellate brief
cplr 5528
READ 5528
tips for effective writing:
1. use roadmap/ topic sentences
2. write to/for the appellate term, not to your adversary
3. simple and clear
4. avoid the passive voice
5. stress legal principles/points- not cases
6. edit edit edit
tips for effective writing:
1. use roadmap/ topic sentences
2. write to/for the appellate term, not to your adversary
3. simple and clear
4. avoid the passive voice
5. stress legal principles/points- not cases
6. edit edit edit
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oral argument
keys:
1. best point first
2. preempt the best counter argument
3. deference
1. best point first
2. preempt the best counter argument
3. deference
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appeals to the appellate division
and to the court of appeals
MUST REQUEST ORAL ARGUMENT- STATE WHO AND FOR HOW LONG- UPPER RIGHT HAND OF THE COVER PAGE;
NYLJ CONTAINS THE CALENDAR FOR ORAL ARGUMENT
USUALLY 15 MINUTES, OFTEN LESS
TIPS-
ROADMAP
STRESS BEST POINTS
DO NOT READ- HAVE A CONVERSATION
HAVE A THEME
NYLJ CONTAINS THE CALENDAR FOR ORAL ARGUMENT
USUALLY 15 MINUTES, OFTEN LESS
TIPS-
ROADMAP
STRESS BEST POINTS
DO NOT READ- HAVE A CONVERSATION
HAVE A THEME
CPLR 2221
motion to renew/reargue
A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order,
a motion to reargue shall be identified as such
shall be based on matters of fact or law allegedly overlooked or misapprehended by the court
shall not include facts not offered on the prior motion
shall be made within 30 day
a motion to reargue shall be identified as such
shall be based on matters of fact or law allegedly overlooked or misapprehended by the court
shall not include facts not offered on the prior motion
shall be made within 30 day
