Forms and Instructions Calendars Appellate Division

General Information

(click on the question to see the answer)

The court is open for the transaction of business from 9 a.m. to 5 p.m., Monday through Friday, except public holidays.

The Appellate Term, Second Department is located at 141 Livingston Street, 15th Floor, Brooklyn, New York 11201.

In general, all papers must be filed with the Clerk’s Office at the above location. Additionally, in all counties located in the Second Department (except Kings County), a proposed order to show cause may be presented to an Appellate Term Coordinator located in the Supreme Court in the county in which the order or judgment appealed from arose. Please refer to Motions for additional information.

Most oral arguments on appeals to the Appellate Term for the 2nd, 11th and 13th Judicial Districts (Kings, Queens and Richmond counties) are held at the Brooklyn courthouse. Oral arguments heard on appeals for the 9th and 10th Judicial Districts are heard at various locations, as set forth under Calendaring and Oral Argument

Downtown Brooklyn is a transportation hub, accessible by many bridges, highways, subway lines, and bus routes. If after reviewing our directions you need further assistance, call the clerk’s office at (347)401-9580.

Yes. The Appellate Term, Second Department is wheelchair accessible.

General Appellate Practice

Some orders and judgments are appealable as of right, others only by permission. Appeals as of right are taken by serving and filing a notice of appeal (CPLR 5515). Permission to appeal is obtained by making a motion for that relief (CPLR 5516). See Civil Appeals or Criminal Appeals for information specific to that particular type of appeal.

The Appellate Term charges no fees. In most civil cases, the court where your case originated charges a fee for the filing of the notice of appeal and the cost of minutes (if necessary). In criminal cases, there is no charge for filing the notice of appeal but there is a fee for minutes (if necessary).

No. Filing a notice of appeal does not stop the lower court proceeding from going forward. See Motions and Orders to Show Cause for further information on how to seek a stay.

No. The court’s rules provide that all briefs, motions, affirmations, and other papers will be deemed filed in this court only as of the time they are actually received by the clerk and that they must be accompanied by proof of service upon all necessary parties pursuant to CPLR 2l03 (22 NYCRR 730.3[b]).

No. The court must receive the record on appeal, with minutes, if required, prior to accepting the appellant’s briefs for filing.

If you have a court-ordered deadline to perfect your appeal you must serve and file amotion for an enlargement of time to perfect your appeal. If your order contained a stay that will fall if the appeal is not perfected then you must move by order to show cause to continue the stay pending appeal.

You may also stipulate with all other parties involved in the appeal for an extension of time to perfect your appeal. The stipulation must include language indicating that the stay shall continue. All stipulations are subject to court approval.

No. The parties may not add anything new to a record or brief which was not considered by the Judge in the court where their case originated.

No. The Appellate Term relies on the original record sent to it by the court where your case originated (22 NYCRR 731.1 and 732.1).

Yes. If an appeal or an underlying action or proceeding is wholly or partially settled, or if any issues are wholly or partially rendered academic, or if any appeal or proceeding should not be calendared because of bankruptcy or death of a party, inability of counsel to appear, or for some other reason, the parties or their counsel must immediately notify the court. Any attorney or party who, without good cause, fails to give such notice may be subject to the imposition of costs and/or sanctions.

A cross appeal is an appeal taken by a party whose interests are adverse to a party who previously appealed from the same order or judgment. Concurrent appeals are those appeals that are separately taken from the same order or judgment by parties whose interests are not adverse to one another but rather to those of another party. The court’s policy is to require that all appeals from the same order or judgment be heard at the same time before the same panel of Justices.

An appellant may withdraw an unperfected appeal by sending a letter to the court, with a copy to all other parties, requesting that an order be issued to that effect. If the appeal or proceeding has been perfected, an appellant must either make a formal motion on notice for leave to withdraw it, or submit a stipulation signed by all parties consenting to the withdrawal. An appellant wishing to withdraw a perfected appeal should include in his or her submission to the court a statement as to when the event warranting withdrawal occurred and an explanation for any delay in informing the court thereof. The failure to immediately notify the court of such an event may result in the imposition of costs and/or sanctions (22 NYCRR 730.3[f]).

You must submit a letter informing the court of your address change and supply proof that all other parties involved in the appeal have been notified. You may also complete and file the court’s form, Notice of Address Change – Form 10.

Your attorney must submit the court’s form, a Notice of Appearance – Form 9 and supply proof that all other parties involved in the appeal have been notified.

Your attorney must submit notification to the court that he or she is no longer representing you along with proof that all the other parties involved in the appeal have been notified.

Civil Appeals

In most civil cases, a notice of appeal must be served upon the adverse parties and filed in the court where your case originated within 30 days after service upon the appellant of a copy of the judgment or order to be appealed with written notice of its entry, except that when the appellant has served a copy of the judgment or order with written notice of its entry, the appeal must be taken within 30 days thereof (CPLR 5513[a]).

In small claim and commercial claim cases commenced in the New York City Civil Court, or in the District, City and Justice courts outside of New York City, the 30-day period within which to take an appeal begins to run when(1) the court served the order or judgment upon the appellant, (2) a party serves the order of judgment upon the appellant, or (3) the appellant serves the order on the party, whichever occurs first (NYC Civil Court Act § 1703[a]; Uniform City Court Act § 1703[a]; Uniform District Court Act § 1703[a]).

A motion for permission to appeal must be made within the same time limits and, if permission to appeal has already been denied by order of the trial court whose determination is sought to be reviewed, within 30 days after service of that order and notice of its entry (CPLR 5513[b]).

Note: These periods are subject to extension based on the method of service (see, e.g., CPLR 2103[b][2], [6]; 22 NYCRR 730.3[2][c]—if service is by mail, five days shall be added to the prescribed period; if service is by overnight delivery, one day shall be added to the prescribed period). Moreover, if the last day of such a period is a Saturday, Sunday, or a public holiday, service and filing may be made on the next business day (General Construction Law § 25-a[1]; 22 NYCRR 730.3[d]).

An appeal as of right is taken by serving anotice of appeal on all other parties involved in the action and filing the notice of appeal in the court where your case originated (CPLR 5515[1], along with a copy of the order or judgment appealed from, and a copy of the opinion or decision, if any.

Whether an order or judgment is appealable by permission and what court is authorized to grant permission varies depending on the court in which the action originated, the courts from and to which the appeal is to be taken, and the nature of the order or judgment appealed from. A person who desires to appeal must check the statutes governing appeals from and to those courts.

After an appeal is taken by filing a notice of appeal or obtaining leave to appeal, it must be perfected. Perfecting an appeal means doing all the acts necessary to place the case on the court’s calendar.

The appellant perfects the appeal by filing the original brief plus five copies with the Appellate Term, accompanied with proof of service of the brief upon the each adversary to the appeal within 90 days of being placed on the court’s general calendar (22 NYCRR731.4[c] or 732.4[c]).

Note: These periods are subject to extension based on the method of service (see, e.g., CPLR 2103[b][2], [6]; 22 NYCRR 730.3[2][c]—if service is by mail, five days shall be added to the prescribed period; if service is by overnight delivery, one day shall be added to the prescribed period). Moreover, if the last day of such a period is a Saturday, Sunday, or a public holiday, service and filing may be made on the next business day (General Construction Law § 25-a[1]; 22 NYCRR 730.3[d]).

An appeal is placed on the general calendar when a complete record on appeal from the trial court is filed with the Appellate Term. Civil appeals must be perfected within 90 days of the Appellate Term’s receipt of the record on appeal from the court where your case originated.

If your appeal is not perfected within the 90 days, the appeal will be dismissed on the next dismissal term.

A party who needs more time to perfect or to file a brief must obtain an enlargement of time to do so. Except where the court has directed that an appeal be perfected or that a brief be served and filed by a date certain, an enlargement of time to perfect or file a brief may be obtained by stipulation or application. Submit an application by letter, addressed to the clerk, with a copy to the other parties to the appeal. Note that within this application a party shall establish a reasonable ground why there cannot or could not be compliance with the time limits given.

Enlargements of time on appeals whose dates were directed by the court may request the same by submitting a motion. See 731.8(d) or 732.8(d) of the court rules for specific instructions, available elsewhere on this site.

A party who has been notified that his or her appeal has been dismissed can serve and file a motion to vacate the dismissal of the appeal. See Motions and Orders to Show Cause for additional information.

Note: These motions are granted at the court’s discretion. A party seeking to vacate a dismissal on default must: 1) demonstrate a reasonable excuse for its default; and 2) a meritorious appeal or defense (see CPLR 5015 [a][1]).

A respondent must serve and file an answering brief within 21 days after service of the appellant’s brief and an appellant may serve and file a reply brief within 7 days after service of the respondent’s answering brief (22 NYCRR 731.4[c] or 732.4[c]).

Note: These periods are subject to extension based on the method of service (see, e.g., CPLR 2103[b][2], [6]; 22 NYCRR730.3[2][c]—if service is by mail, five days shall be added to the prescribed period; if service is by overnight delivery, one day shall be added to the prescribed period). Moreover, if the last day of such a period is a Saturday, Sunday, or a public holiday, service and filing may be made on the next business day (General Construction Law § 25-a[1]; 22 NYCRR730.3[d]).

The respondent must serve one copy of the brief on each adversary and file one original plus five copies with the Appellate Term. The same principle applies to appellant’s reply briefs should the appellant choose to file.

No.

In a civil appeal a motion for reargument or for leave to appeal to the Appellate Division can be made to the Appellate Term (22NYCRR731.11 and 732.11).

Motions to reargue an appeal or to resettle an order or to amend a decision shall be made within 30 days after the decision on the appeal, except that for good cause shown, the court may consider any such motion when made at a later date.

A motion for leave to appeal to the Appellate Division from an adverse determination of the Appellate Term shall be made in the manner and within the time prescribed by CPLR 5513(b) and 5516. See Motions and Orders to Show Cause for additional information.

Note: Under the Appellate Division rules, a motion for leave to appeal must first be denied by the Appellate Term before a party can seek leave to appeal to the Appellate Division.

CRIMINAL APPEALS

A notice of appeal must be served and filed in the court where your case originated within 30 days after the date of sentence.

Applications for orders granting leave to appeal under CPL 450.15 and 460.15 shall be filed with the clerk of this court along with proof of service upon the prosecutor who appeared for the People in the criminal court. Applications must be made within 30 days after service upon the applicant of a copy of the order.

Note: These periods are subject to extension based on the method of service (see, e.g., CPLR 2103[b][2], [6]; 22 NYCRR 730.3[2][c]—if service is by mail, five days shall be added to the prescribed period; if service is by overnight delivery, one day shall be added to the prescribed period). Moreover, if the last day of such a period is a Saturday, Sunday, or a public holiday, service and filing may be made on the next business day (General Construction Law § 25-a[1]; 22 NYCRR 730.3[d]).

If minutes or a tape recording of the proceedings were taken, the appellant must purchase the minutes and serve a copy on the prosecutor. The trial court must then settle the minutes. Consult the clerk of the court where your case originated for further instructions.

An affidavit of errors must be served and filed. Consult the Appellate Term clerk’s office for further instructions.

An affidavit of errors must be filed in the court where your appeal originated within 30 days after the date of sentence or within 30 days after the service and filing of the notice of appeal.

A notice of motion for an extension of time to take an appeal must be made with due diligence within one year and 30 days after the date of sentence (CPL 460.30). See Motions and Orders to Show Cause for additional information.

If your appeal originated in the 2nd, 11th & 13th Judicial Districts (counties of Kings, Queens and Richmond) you can make an application in the Supreme Court of the county which has jurisdiction over your case.

If your appeal originated in the 9th & 10th Judicial Districts (counties of Dutchess, Westchester, Orange, Putnam, Rockland, Suffolk and Nassau) you can make an application for a stay in the Supreme Court in the county which has jurisdiction over your case or in the Appellate Term. It is customary practice that the application be made in Supreme Court.

After the notice of appeal is filed, the appellant may send a letter to the Appellate Term requesting the forms to apply for poor person relief (to purchase the minutes) and to be assigned an attorney. The Appellate Term will then mail the necessary forms to fill out and return to the court.

Appellants who are in jail can apply by letter and usually receive immediate poor person relief.

A criminal appeal is placed on the general calendar when a duplicate notice of appeal or an affidavit of errors and the court’s return have been filed with the Appellate Term as provided in CPL 460.10(1)(e), 460.10(2) and 460.10(3)(d).

After an appeal is taken by filing a notice of appeal or obtaining leave to appeal, it must be perfected. Perfecting an appeal means doing all the acts necessary to place the case on the court's calendar.

The appellant has 90 days from the date the notice of appeal is filed to perfect their criminal appeal. The case will be put on the dismissal calendar the month after the 90th day has passed.

The appellant perfects the appeal by filing the original brief plus five copies with the Appellate Term, accompanied with proof of service of the brief and one copy of a transcript of the minutes of all proceedings upon the respondent within the prescribed time (22NYCRR § 731.4[c] or § 732.4[c]).

A respondent must serve and file an answering brief within 21 days after service of the appellant’s brief and an appellant may serve and file a reply brief within 7 days after service of the respondent’s answering brief (22 NYCRR 731.4[c] or 732.4 [c]).

Note: These periods are subject to extension based on the method of service (see, e.g., CPLR 2103[b][2], [6]; 22 NYCRR 730.3 [2][c]—if service is by mail, five days shall be added to the prescribed period; if service is by overnight delivery, one day shall be added to the prescribed period). Moreover, if the last day of such a period is a Saturday, Sunday, or a public holiday, service and filing may be made on the next business day (General Construction Law § 25-a[1]; 22 NYCRR 730.3[d]).

The respondent must serve one copy of the brief on each adversary and file one original plus five copies with the Appellate Term. The same principle applies to appellant’s reply briefs should the appellant choose to file.

This notice advises the appellant that his or her appeal will be on the Dismissal Calendar for failure to prosecute.

To prevent your appeal from being dismissed, you must either:

  1. perfect the appeal before the dismissal date,
  2. obtain a written stipulation with the prosecutor to enlarge time to perfect the appeal,
  3. make a motion to enlarge time to perfect the appeal or for poor person relief before the dismissal date, or
  4. submit an application by letter, addressed to the clerk, with a copy to the prosecutor. Note that within this application a party shall establish a reasonable ground why there cannot or could not be compliance with the time limits given.

A party who has been notified that his or her appeal has been dismissed can serve and file a motion to vacate the dismissal of the appeal. See Motions and Orders to Show Cause for additional information.

Note: These motions are granted at the court’s discretion. A party seeking to vacate a dismissal on defaultmust: 1) demonstrate a reasonable excuse for its default; and 2) a meritorious appeal or defense (see CPLR 5015 [a][1]).

In a criminal appeal, the appellant can make a motion to reargue to this court within 30 days after the decision on the appeal, except that for good cause shown, the court may consider any such motion when made at a later date.

A motion for leave to appeal is made directly to the New York State Court of Appeals in Albany. They are located at 20 Eagle Street, Albany, New York 12207-1095. Their telephone number is 518-455-7700. See Motions and Orders to Show Cause for additional information.

CALENDARING AND ORAL ARGUMENT

The court schedules cases for a hearing before a particular panel of Justices by publishing its day calendars in the New York Law Journal. A written notice is provided to litigants by mail no less than five days before the scheduled argument; however, the court assumes no responsibility for the accuracy, timeliness, or receipt of such notice. Oral argument will not be rescheduled because a litigant failed to obtain actual prior notice of the appearance of an appeal on the day calendar. Parties are reminded that the only official notice of the calendar date is the publication in the New York Law Journal.

On appeals to the Appellate Term for the 2nd, 11th and 13th Judicial Districts (Kings, Queens and Richmond counties), the court usually convenes in the courtroom of its courthouse at 141 Livingston Street, 15th Floor, Brooklyn, New York at 9:15 AM. Appeals are also heard twice a year in Queens County and once a year in Richmond County.

Appeals to the Appellate Term for the 9th & 10th Judicial Districts (Nassau, Suffolk, Westchester, Rockland, Orange Dutchess and Putnam counties) are heard at 9:30 AM in White Plains, Mineola or Central Islip on a rotating basis. On occasion, oral argument is heard in Dutchess, Orange or Rockland counties.

A request for argument is made by placing a notation on the upper right hand corner of the cover of the party’s main brief stating whether the appeal is to be argued and, if so, the time actually required for argument and the name of the attorney/party who will argue (22 NYCRR731.2 [a][2]). No more than 15 minutes will be allowed for argument on each side, except by express permission of the court (22 NYCRR 731.6[a]). If a notation is not made stating that you wish to argue the appeal, it will be marked as “submitted” and oral argument will not be permitted (22 NYCRR 731.6 [b])

Note: You will not be permitted to argue unless you have submitted a brief.

A party who originally elected to argue may elect to submit the case without argument. Written notice should be given to the court and all other parties involved in the appeal as soon as possible.

By custom, if a party who has asked for argument does not answer at the call of the calendar, the appeal will be marked submitted by that party.

The court may, in its discretion, deny argument of any appeal (22 NYCRR 731.6[d]). It does so in relatively noncomplex cases and places them on a calendar of submitted matters. This does not indicate that the court deems the appeal to be without merit, but rather only that the court has concluded that it does not need oral argument to assist in deciding the matter.

Adjournment requests are disfavored because the panel of Justices scheduled for a particular day will rarely recombine in the ensuing months. The Justices prepare well in advance of the calendar date.

The best advice is to avoid the need for an adjournment by informing the court, in advance, of commitments that will interfere with an attorney’s or party’s ability to appear on a particular date. The court attempts to avoid scheduling conflicts when placing a case on the calendar. If unforeseen events make a request for an adjournment a necessity, it should be made by letter addressed to the Clerk of the Court, with a copy to each other party to the appeal, stating:

  1. why the attorney or pro separty cannot appear at oral argument,
  2. why no other attorney can appear in his or her place and,
  3. why oral argument, rather than submission is necessary.

Adjournment requests may be sent by facsimile to (718) 643-7889. All requests for adjournment are subject to court approval.

DECISIONS

The court will post decisions on appeals and motions regularly on this web site. The court’s decisions on appeals and are also published in the New York Law Journal as are most motion decisions. Litigants should check that source periodically. Alternatively, they may call the clerk’s office at 347-401-9580 to ask whether a decision has been issued on an appeal or motion.

Copies of the court’s decisions on appeals and motions are published in the New York Law Journal and are on-line at the web site of the New York State Law Reporting Bureau located at http://www.courts.state.ny.us/reporter/. Currently, copies of decisions are also mailed to all parties. The court is in the process of implementing a system of e-mailing decisions to parties.

Contact the clerk of the court where your case originated for information.

MOTIONS AND ORDERS TO SHOW CAUSE

If a party needs to seek interim relief from the Appellate Term during the course of an appeal, he or she must make a motion which may be brought on by a notice of motion or order to show cause.

Generally, the answer is no. The fact that a notice of appeal has been filed does not automatically stay compliance with the order or judgment appealed from. The exceptions to this rule may be found in CPLR 5519[a], and generally involve situations where the appellant is a municipality or where the judgment appealed from directs the payment of a sum of money and that judgment has been bonded (in Landlord & Tenant cases, a stay without court order is accomplished when an undertaking, a sum fixed by the lower court, is paid by the appellant as per CPLR 5519 [a][6]). Also, the Appellate Term or the court from which the appeal is taken may grant a discretionary stay (CPLR 5519[c]).

If the appellant obtains a stay pending appeal to the Appellate Term, and then is wholly or partially unsuccessful on that appeal, the stay remains in effect for five days after service upon the appellant of a copy of the Appellate Term order with notice of entry. If the appellant makes a motion for leave to appeal within that five-day period, the stay remains in effect (1) if the motion is granted, until five days after the appeal is determined, or (2) if the motion is denied, until five days after the movant is served with the order denying leave to appeal with notice of its entry (CPLR 5519[e]).

An order to show cause may be presented for signature at the Appellate Term courthouse located at 141 Livingston Street, 15th Floor in Brooklyn, Monday through Friday, between the hours of 9 a.m. and 5 p.m., excepting public holidays. Additionally, in all counties located in the Second Department (except Kings County), a proposed order to show cause may be presented to an Appellate Term Coordinatorin the Supreme Court located in the county in which the order or judgment appealed from arose. The coordinators, Supreme Court clerks trained in the court’s procedures by Appellate Term staff, undertake a preliminary review of the submission, and then transmit it via digital sender to the Appellate Term clerk’s off ice. The clerk’s office in turn reviews the submission and presents the application for review by a reserve justice, and returns the justice’s decision to the coordinator for dissemination to the moving party. This has led to significant convenience to court users, as well as speedier and more consistent processing and disposition of applications. Applications pursuant to CPLR 5704(b) are processed in much the same way. The procedures are more fully described elsewhere on this site.

Note: The original order to show cause will remain with the court. The party submitting the order to show cause is required to have three copies of the entire Order to Show Cause available to conform and serve.

A motion brought on by notice of motion may be made returnable only at 10:00 A.M. Monday through Friday, and must be served in accordance with CPLR 2103 and made on the notice required by CPLR 2214. The return date of a motion brought on by order show cause and the method and time of its service are fixed by the Justice who signs it. All motions are returnable at the Office of the Clerk, Appellate Term, 141 Livingston Street, 15th Floor, Brooklyn, New York 11201.

Only the original motion papers are required.

All motions are submitted.

No. No appearance is required.

The return date of an order to show cause can be adjourned to allow for opposition papers. The party seeking the adjournment must submit a letter wherein the new date requested is indicated. The party must also indicate that the stay is continued against them or their client. A copy of the letter must be sent to the other parties in the action. The letter can be brought to the clerk’s office or submitted by facsimile transmission at (718) 643-7889. This only applies to orders to show cause when a stay is involved.

Adjournments of motions can be obtained by submitting:

  1. a stipulationsigned by all parties (subject to the approval of the court) or
  2. a written application with a copy to the other parties to the appeal. Note that within this application a party shall establish a reasonable ground why there cannot or could not be compliance with the time limits given. Orders made pursuant to this method shall be reviewable by motion to the court on notice pursuant to 22 NYCRR § 731.7.

The stipulation or application can be brought to the clerk’s office or submitted by facsimile transmission at (718) 643-7889.

Additional time to serve and file opposition or reply papers to a motion can be obtained by submitting:

  1. a stipulation signed by all parties (subject to the approval of the court) or
  2. a written application with a copy to the other parties to the appeal. Note that within this application a party shall establish a reasonable ground why there cannot or could not be compliance with the time limits given. Orders made pursuant to this method shall be reviewable by motion to the court on notice pursuant to 22 NYCRR § 731.7.

The stipulation or application can be brought to the clerk’s office or submitted by facsimile transmission at (718) 643-7889.