NY: Hold on to Oral Argument for Non-enumerated Appeals

NY State Court of AppealsIn New York appellate practice, procedure and rules for oral argument vary by court. In general, only one attorney per party will be allowed to argue, as in the Court of Appeals, the state’s highest court. In the Appellate Division, First Department, counsel is required to consult on whether they wish to argue or submit.

All appeals are not entitled to argument.

 Attorneys eager to request time for oral argument should note that all appeals are not entitled to argument before a panel. For example, the Appellate Division, First Department will notice an appeal under two high-level categories: Enumerated and Non-enumerated.

If an appeal is non-enumerated, it is prohibited from oral argument. Section 600.4 of the Court’s Civil Procedure Law and Rules (CPLR) controls how appeals are noticed for the calendar and lists all types of enumerated appeals. Among them are appeals from:

  • Final orders and judgments of the Supreme Court
  • Final decrees or orders of the Surrogate Court in special proceedings
  • Orders granting or denying a motion for a new trial
  • Orders granting or denying motions for summary judgment
  • Orders granting or denying motions to dismiss a complaint
  • Judgments or orders in criminal proceedings, and
  • Controversies on agreed statement of facts.

See CPLR 600.4 for the full listing of enumerated appeals. Enumerated appeals are those deemed entitled to be heard by the Court. All other appeals are non-enumerated and not entitled to oral argument.

NY Appellate Division, Second Department

The Appellate Division, Second Department does not utilize enumerated v. non-enumerated appeals per se, but it does differentiate between appeals that qualify for arguments, and those that do not.

The Second Department will hear appeals from judgments, orders or decrees made after a trial or hearing; appeals from orders of the Appellate Term; or special proceedings transferred to the Court for disposition.

The Court will not, as a matter of procedural right, hear appeals from issues involving:

  • Maintenance/spousal support
  • Child support
  • Counsel fees
  • Sentencing
  • Grand Jury reports, and
  • Calendar and practice matters.

The Second Department’s local rules also state that counsel may apply for permission to argue on the above restricted appeals, so long as such application is made in Court, at the call of the calendar, on the day the cause appears on the calendar.

Saving Your Arguments

As noted, you must appear in Court at the call of the calendar on the day your cause first appears on the Second Department’s calendar in order to apply for permission to argue an appeal not entitled to be heard.

In the Appellate Division, First Department, application for permission to argue a non-enumerated appeal can be made by sending a letter to the presiding judge, stating why the case should be heard.

In both Courts, the first step toward preserving oral argument is to list the name of the attorney who will argue the case on the upper right-hand corner of the principal brief’s cover.

Strategy Note

Briefs are the foundation of appellate advocacy, and oral arguments the cornerstones. Yet, many attorneys discount the importance of oral advocacy, and the weight oral arguments can hold with judges.

To submit the matter and rest upon your papers is to lose a crucial opportunity to engage directly with the Court. It is possible that the issue has not been adequately summarized for the panel. It is also possible that a judge will ask questions that allow you to re-focus their framework for analysis in your client’s favor.

Whatever opportunities may exist, none will be availed to the attorney if she/he does not appear at oral arguments.

Even when argument is sought and granted, if counsel is not present at the call of calendar at the beginning of each session in the First and Second Departments, the appeal will automatically be marked as submitted on the briefs.

Apellate filing efiling and assemblyAbout the Author: Natasha R. Monell, Esq, is Vice President of Appellate Management & Staff Counsel, and heads up our team of appellate advocates at Record Press, Inc., where her appellate filing expertise has been a highly sought after commodity for well over 15 years. Ms. Monell specializes in New York State Appellate Courts, all Federal Circuit Courts and United States Supreme Court filings and strategies that advance any litigation teams’ appeal to perfection. Email Natasha Monell

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