500.3 Sua sponte examination of subject matter jurisdiction.

This court may determine, sua sponte, whether it has subject matter jurisdiction and authority to review, based on the papers submitted in accordance with section 500.2 of this Part and on such other written submissions as may be sought.

500.4 Sua sponte examination of merits.

(a) The court may examine the merits of selected appeals, on its own motion, by an expedited procedure.

(b) Appeals may be selected on the basis of:

(1) non-reviewable questions of discretion or affirmed findings of fact;

(2) clear recent controlling precedent;

(3) narrow issues of law not of overriding or statewide importance;

(4) nonpreserved issues of law; or

(5) other appropriate factors.

Such appeals to this court may be determined on the Appellate Division record and briefs, the writings in the courts below and such additional written submissions on the merits as counsel may file. In such cases, upon receipt and review of the section 500.2 jurisdictional statement, or upon this court's granting leave to appeal, the clerk will notify all counsel by letter that the appeal has tentatively been selected for consideration pursuant to this section.

(c) An appeal selected for consideration pursuant to this section is nevertheless subject to dismissal on the court's own motion should it be determined that the court is without subject matter jurisdiction (see section 500.3 of this Part).

(d) Counsel may include in the section 500.2 statement a request that the appeal be considered for expedited resolution, along with a showing that consideration pursuant to this section is appropriate; respondent's counsel may likewise request or controvert such requests in writing.

(e) Upon receipt of the clerk's letter initiating the inquiry pursuant to this section, appellant must file three copies of the Appellate Division record and three copies of each brief filed by any party in the Appellate Division. Original exhibits not in the record or appendix at the Appellate Division must be submitted to this court or, if they are on file with the clerk of the trial court, shall be subpoenaed to this court and the court so advised in the letter transmitting the record or appendix. They should be clearly identified and, where appropriate, their authenticity should be certified or stipulated.

(f) Within 20 days of the clerk's inquiry, appellant must file three copies of its written comments and arguments in support of appellant's position on the merits and serve one copy. Three copies of respondent's submission must be filed and one copy served 15 days after receipt of appellant's submission. The parties will be deemed to have abandoned any argument made in the Appellate Division briefs which is not reserved in the written submission. If either party objects to consideration pursuant to this section, written comments and arguments justifying that position should accompany the written comments and the arguments submitted in support of its position on the merits. The court either will direct that the appeal proceed to full briefing and argument or will proceed directly to decide the merits. Proof of the required service on appellant or respondent must be included with the papers filed with the clerk.

(g) If inquiry pursuant to this section is terminated, the clerk will notify counsel by letter and set a new schedule for perfecting the appeal for full briefing and oral argument, if desired.

(h) Subject to the criteria of rule 500.11 (Amicus curiae relief on formal motion), amicus curiae relief on appeals selected for expedited review pursuant to this section may be authorized on written submission to the court served on all parties requesting that right and including the proposed submission.

500.5 Filing and service of appellant's papers on appeal.

(a) Appellant must supply the court with record material. This may be done in any of the following three ways:

(1) Appellant may subpoena to this court, from the clerk of the court of original instance or other custodian, the original file, and submit original exhibits to be relied upon, and supplement these with 20 copies of an appendix which complies with section 500.6 of this Part. If appellant is represented by assigned counsel, or has established indigency, an oral or written request may be made of the clerk of this court to obtain the original file. Three copies of the appendix shall be served on respondent.

(2) In lieu of the original file, a copy of the reproduced record used at the Appellate Division may be submitted if it contains the complete original file and if it conforms substantially with the requirements of section 500.1 of this Part. This record must be supplemented by 20 copies of an appendix which complies with section 500.6 of this Part. Three copies of the appendix shall be served on respondent.

(3) Appellant may file with the clerk 20 copies, and serve on respondent 3 copies, of a new and full record which shall include the additional papers to the Court of Appeals.

(b) The correctness of the record or original file and the appendix and additional papers shall be certified by the clerk of the court from which appeal is taken, or otherwise authenticated pursuant to CPLR 2105, or stipulated pursuant to CPLR 5532.

(c) Exhibits. Original exhibits which are not in the record or appendix may be submitted with the record or appendix in accordance with a stipulation of counsel or at the direction of the court. They should be clearly identified and, where appropriate, be certified or stipulated as to their authenticity.

(d) Within 60 days from the time the appeal is taken, unless another due date has been set by the court, 20 copies of the appellant's record materials and brief are to be filed with the clerk with proof of service of three copies upon each other party. The brief shall include:

(1) a statement showing that the court has jurisdiction to entertain the appeal and to review the questions raised including citations to the pages of the record or appendix which, it will be claimed, preserve each such question for review by the court;

(2) a table of cases and authorities cited; and

(3) on the cover, the name of counsel, the date of the completion of the brief, whether the appeal is to be argued or submitted without oral argument and, if relevant, the name of arguing counsel and amount of time required for argument (see also section 500.8 of this Part).

Where New York authorities are cited, New York Official Law Report citations must be included.

(e) An appellant's brief, filed by or on behalf of one or more corporations, shall include a listing naming all parent companies, subsidiaries and affiliates of each such corporation.

(f) A reply brief may be served and filed within 10 days after receipt of respondent's brief. Where cross appeals are filed, the cross appellant may file a reply brief to the main appellant's responsive brief. Twenty copies are required to be filed with the clerk, with proof of service of 3 copies upon each other party.

(g) Reduced numbers of copies of any papers or briefs required to be served and filed are authorized only by an order of the court pursuant to section 500.11 of this Part.

(h) Any counsel may file pertinent decisions of the New York Court of Appeals and of the United States Supreme Court, decided after the completion and filing of briefs, at any time prior to decision by this court. Other decisions may be filed only with the permission of the court upon written request.

(a) An appendix is required in every case in which appellant does not file 20 copies of the full record on appeal pursuant to section 500.5(a)(3) of this Part, and in such cases the clerk may not accept appellant's brief unless an appendix is furnished. Filing of the section 500.2 jurisdictional statement does not satisfy the requirements of this section. The appendix shall conform to the requirements of CPLR 5528 and 5529, and in addition shall include, when relevant to the appeal, all or part of the following specific material:

(1) the notice of appeal or the order granting leave to appeal;

(2) the order, judgment or determination of the court or agency from which the appeal is taken;

(3) the opinions or memoranda or statement of no opinion;

(4) the charge to the jury;

(5) findings;

(6) judgment, order or determination of the court or agency reviewed, and their dates; and

(7) only so much of the testimony, affidavits, and written or photographic exhibits as may be useful to the determination of the questions raised on the appeal.

(b) If it conforms with these requirements, the appendix used at the court or agency from which the appeal was taken may be employed with the required additional papers generated at the intermediate appellate court annexed or separately supplied.

(c) Where appellant has filed an inadequate appendix, respondent may move to strike it or may submit a respondent's appendix containing such additional parts of the record as are deemed necessary to consider the questions involved.

(a) (1) Within 45 days of the service of appellant's papers, unless another due date has been set by the court, respondent shall file with the clerk 20 copies, with proof of service of 3 copies on each other party, of respondent's brief, which shall contain a table of cases and authorities cited and, on the cover, the name of counsel, the date of completion of the brief, whether the appeal is to be argued or submitted without oral argument, and, if relevant, the name of arguing counsel and amount of time requested for argument. Respondent may append to that brief a supplementary appendix. A reduced number of copies may be authorized only by order of the court (see sections 500.8 and 500.11 of this Part).

(2) Sur reply briefs are not permitted.

(b) A respondent's brief, filed by or on behalf of one or more corporations, shall include a listing naming all parent companies, subsidiaries and affiliates of each such corporation.

(c) The correctness of a supplementary appendix shall be certified by the clerk of the court from which the appeal is taken or otherwise authenticated pursuant to CPLR 2105, or stipulated pursuant to CPLR 5532. Proof of the required service on appellant must be included with the papers filed by respondent with the clerk.

(a) Requests for argument time. Briefs must show on the cover the time requested for argument or that the appeal is to be submitted. If a time request does not appear on the brief, 10 minutes will be assigned. Maximum argument time is 30 minutes and only one counsel is permitted to argue for a party. Rebuttal may be permitted for exceptional cause but only within the assigned time limits. The date of completion of briefs, name, address and telephone number of counsel must appear on all briefs. When the calendar has been prepared, the clerk will by letter advise counsel of the date assigned for argument. The court sits each session day at 2 p.m., except Fridays when the session begins at 1 p.m. The clerk will advise counsel in cases affected if arguments are to be held at hours other than these specified. Each judge examines the filed papers and briefs and the facts and issues of each case in advance of oral argument. Thus, the time requested for oral argument should be only that required to discuss the issues involved.

(b) Calendar preferences. Preferences for argued and submitted appeals will be considered upon a written showing of urgency, or potential irreparable harm, or public necessity, and, in all instances, lack of an available alternative remedy. Application for a preference may be made by letter to the court, through the clerk of the court, with notice to counsel for all parties who may be affected. The application should include:

(1) a statement of the nature of the case;

(2) the jurisdictional predicate for appeal to the Court of Appeals;

(3) the state of readiness of the appeal;

(4) all relevant dates, such as the dates of the orders and judgments below, the notice of appeal or order granting leave, the dates of filing of briefs and papers on appeal; and

(5) the reason why a calendar preference is needed and why it should be granted.

(c) The court may, upon receipt of notice that an appeal has been taken or upon granting leave to appeal, sua sponte order the case on the calendar for a particular date and set a schedule for the service and filing of all appeal papers.

(a) All of appellant's papers must be filed within 60 days after the appeal is taken, unless otherwise directed by the court. If this court had no notice from any source of a pending appeal and 80 days pass from the date it was taken without compliance with this section, then upon receipt of notice of the pendency of the appeal the clerk shall enter an order dismissing the appeal for failure of appellant to proceed or file papers (see also subdivision [b] of this section where the court has been provided with notice of pending appeals).

(b) Where the court has notice of an appeal and if the appellant shall not have filed and served the papers required by section 500.4 or 500.5 of this Part within the time prescribed by these Rules or by the date otherwise directed by the court, the court will issue to appellant by regular mail to counsel of record a notice that such service and filing be made within 20 days after the date of the notice, unless the court, in setting a date certain for filing, has indicated that such date is final or that no 20-day notice shall issue. After the 20-day notice, if any, has been received, but prior to the expiration of that 20-day period, appellant may, on good cause shown, request of the clerk of the court an extension of the 20-day period to a day certain. On failure to comply with the terms of the court's direction, original notice or the terms as extended by the clerk, an order shall be entered by the clerk dismissing the appeal.

(c) If the respondent shall not have filed and served the papers required by section 500.4 or 500.7 of this Part within the time prescribed by these Rules or the date otherwise directed by the court, the court will issue to respondent, by regular mail to counsel of record, a notice that such service and filing be made within 20 days after the date of the notice, unless the court, in setting a date certain for filing, has indicated that such date is final or that no 20-day notice shall issue. After the 20-day notice, if any, has been received but prior to the expiration of that 20-day period, respondent may, on good cause shown, request of the clerk of the court an extension of the 20-day period to a day certain. On failure to comply with the terms of the court's direction, original notice or the terms as extended by the clerk, an order shall be entered by the clerk precluding the right of respondent to submit a brief.

(d) Where, within the time requirements of sections 500.4, 500.5, 500.7 and this section, appellant or respondent shall establish reasonable ground why there may not be compliance with these rules of court, the clerk of the court is authorized to grant reasonable extensions of the time for filing papers. This authority shall be exercised liberally, consistent with the court's policy to secure speedy and just resolution of appeals. All orders made by the clerk may be reviewed by motion to the court on notice in accordance with section 500.11 of this Part.

(a) Criminal leave applications pursuant to Criminal Procedure Law, section 460.20. Applications to the Chief Judge may be in letter form and should be sent to the attention of the clerk of the court, with one copy served on the adverse party. Only one application is available and the letter should indicate that an application has not been made to a justice of the Appellate Division. The Chief Judge directs the designations of applications to a judge of the court through the clerk of the court; counsel may not apply directly to a judge or request that an application be assigned to a particular judge. Counsel should identify the issues on which the application is based and specify whether oral argument is requested. In this regard telephone conference calls are a useful practical alternative, particularly where unnecessary and substantial travel and its attendant expense can be avoided. Specific arrangements may be made with the assigned judge. This court does not assign counsel for criminal leave applications. Counsel assigned or retained at the Appellate Divisions or other intermediate appellate courts are required by rules of those courts to make the application if defendant requests. The application may be made by the appellant, pro se (only after a grant of leave to appeal, is a motion under section 500.11 of this Part to this court for assignment of counsel appropriate). A copy of the brief submitted by the defendant to the court from which the appeal is taken, the brief submitted by the People to the court from which the appeal is taken, the order of the court from which the appeal is taken and all relevant opinions or memoranda of the courts below must be submitted, along with any other papers to be relied on in furtherance of the application. Particular written attention should be given to identifying problems of reviewability and preservation of error, identifying and reproducing the particular portions of the record where the questions sought to be reviewed are raised and preserved. Names of all codefendants, if any, and the status of their appeals, if known, must be provided.

(b) Reargument or reconsideration. Requests for reargument or reconsideration are made through the clerk of the court, and will be assigned to the judge who ruled on the original application. A request for reargument or reconsideration may not be based on the assertion for the first time of new points except for extraordinary and compelling reasons. Unless otherwise permitted by the assigned judge, the reconsideration request shall be served not later than 30 days after the original application has been decided.

(c) Papers in criminal matters. Papers utilized in appeals in criminal cases, or in habeas corpus or other civil proceedings arising from criminal matters involving parties without funds, shall comply in form and content with these rules. On application by assigned counsel, the reasonable cost of furnishing and reproducing necessary papers and briefs shall be reimbursed in accordance with law. Assigned counsel shall employ the least expensive method of reproduction and of compliance with the rules of the court, and in no case will the court approve reimbursement of costs and disbursements to assigned counsel in excess of $350 without the prior express written approval of the clerk or deputy clerk of the court. At the conclusion of the assignment, after decision has been rendered, counsel should present a request for fee and disbursements.

(a) A motion addressed to the court may be made on 8 days' notice (personal service) or 13 days' notice (service by mail). Motions are returnable at Court of Appeals Hall in Albany every Monday, whether or not the court is in session. Whenever a Monday is a State holiday, motions are returnable on the next day of that week that is not a State holiday. Unless otherwise directed by order to show cause or by stipulation so ordered by a judge of the court, the return date for a motion for permission to appeal in a civil case must be an available motion day within the meaning of CPLR 5516. All motions shall be submitted without oral argument. Unless otherwise permitted by the court or the clerk, the papers in support of a motion must be filed at Court of Appeals Hall no later than noon on the Friday preceding the return date. All responding papers must be served and filed at Court of Appeals Hall on or before the return date of the motion. Proof of service on each other party must be filed with any papers submitted on a motion. No adjournments are possible other than in those narrow circumstances provided by statute (CPLR 321 [c] and 1022).

(b) Motion papers, filed by or on behalf of one or more corporations, shall include a listing naming all parent companies, subsidiaries and affiliates of each such corporation.

(c) Reply briefs or memoranda are not permitted by the court's motion practice. Requests for permission to file papers after the motion return date are governed by section 500.12 of this Part.

(d) Permission to appeal in civil cases. The motion shall be made on 10 copies of the moving papers in support of the motion, which shall in form comply with section 500.1 of this Part, and proof of service of 3 copies on each other party. In addition, movant must file one copy of the record below, or appendix if the appendix method was used in the court below, and one copy of each party's briefs below. Any motion, including those affecting quasicriminal proceedings such as habeas corpus, may be made on a single set of the moving papers with proof of service of one copy in instances where there is simultaneously filed with the court an affidavit of indigency or extreme financial hardship. In accordance with the court's long-standing practice, leave to appeal will be granted upon the concurrence of two judges.

(1) The moving papers shall be a single document, bound on the left, and shall contain in the order here indicated:

(i) A notice stating the return date and the relief requested.

(ii) A concise statement of the questions presented for review.

(iii) A statement of the procedural history of the case, including a showing of the timeliness of the motion. If the motion for leave to appeal is made directly to this court, without there first having been a motion at the Appellate Division, the moving papers to this court shall demonstrate timeliness by stating the date movant was served with the order or judgment sought to be appealed, with notice of entry. If the motion for leave to appeal is made to this court after there first having been a motion at the Appellate Division, the moving papers to this court shall demonstrate that the timeliness chain is intact by stating (a) the date movant was served with the order or judgment sought to be appealed, with notice of entry, (b) the date movant served his Appellate Division notice of motion upon his adversary, and (c) the date movant was served with the Appellate Division order denying leave to appeal with notice of entry. There shall be attached to the moving papers copies of each such order or judgment, together with its notice of entry, as well as copies of all opinions or memoranda rendered in the courts below. The papers shall note if no opinion was rendered.

(iv) A showing that this court has jurisdiction of the motion and of the proposed appeal, including that the order or judgment sought to be appealed from is a final determination or comes within the special class of nonfinal orders which are appealable by permission of the Court of Appeals (CPLR 5602[a][2]).

(v) A direct and concise argument showing why the questions presented merit review by this court, such as that they are novel or of public importance, or involve a conflict with prior decisions of this court, or there is a conflict among the Appellate Divisions. The particular portions of the record where the questions sought to be reviewed are raised and preserved shall be identified.

(2) On or before the return of the motion, the responding party may submit 10 copies of papers in opposition to the motion, together with proof of due service of 3 copies on each other party. The opposing papers shall be a single document, bound on the left, and shall concisely present respondent's argument for dismissal or denial of the motion, with specific reference to movant's argument that the questions presented merit review. If respondent does not submit opposing papers, the filing by respondent of one copy of respondent's Appellate Division brief is mandatory.

(3) Movant's failure to comply with the service and filing requirements (all papers must be served at least eight days prior to the statutory return date and be filed in the clerk's office no later than noon on the Friday preceding the return date) may result in dismissal of the motion.

(e) Amicus curiae relief. (For appeals selected for sua sponte examination of the merits, see section 500.4 of this Part.) A brief may be filed only by leave of court granted on motion, or upon the court's own request.

Motions for amicus curiae relief, when appropriately made on notice to all of the parties and sufficiently in advance of the argument of the appeal to allow adequate court review of the motion and the proposed brief, must include consideration of and satisfaction to the court of at least one of the following criteria:

(1) a showing that the parties are not capable of a full and adequate presentation and that movants could remedy this deficiency;

(2) that movants would invite the court's attention to law or arguments which might otherwise escape its consideration;  or

(3) that amicus curiae briefs would otherwise be of special assistance to the court.

Issues not before the courts below may not be raised for the first time by an amicus.

(f) Motions other than for permission to appeal and reargument. Motions other than those provided by subdivisions (d) and (g) of this section may be made on a single set of the moving papers, with proof of service of one copy, and shall be submitted without oral argument.

(g) Reargument of appeals and motions.

(1) The motion shall be made without oral argument on 10 copies of a brief or memorandum, reproduced in conformity with section 500.1 of this Part, which shall state briefly the ground upon which reargument is asked and the points claimed to have been overlooked or misapprehended by the court, with proper reference to the particular portions of the record and to the authorities relied upon.

(2) On reargument of motions, a single brief or memorandum may be filed if that was the requirement on the original motion.

(3) The motion may not be based on the assertion for the first time of new points except for extraordinary and compelling reasons. Unless otherwise permitted by the court, the notice of motion shall be served not later than 30 days after the appeal or motion has been decided. Proof of service of 3 copies of the moving papers on each other party is required.

(h) Motion papers which do not conform to the requirements of the Court's Rules of Practice may be rejected by the Clerk.

(a) Upon the filing of record material pursuant to Rule 500.5 or Rule 500.4 on a civil appeal, unless exempted from the fee requirement by statute or other authority, the appellant shall provide the clerk of the court with the fee in the amount specified in CPLR 8022 in the form of an attorney's personal check, certified check, cashier's check or money order payable to "State of New York, Court of Appeals" unless: