GENERAL
MATTERS
500.1
General Requirements. |
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| (a) |
All papers shall comply
with applicable statutes and rules, particularly the signing requirement
of 22 NYCRR 130-1.1-a. |
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| (b) |
Method of reproduction.
All briefs, papers submitted pursuant to sections 500.10
and 500.11 of this Part, motion papers and appendices
(hereinafter “papers filed”) may be reproduced by any method
that produces a permanent, legible, black image on white paper. Reproduction
on both sides of the paper is encouraged. |
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| (c) |
Necessary information.
Where this Part requires the filing of multiple copies of papers, the parties
shall identify on its cover the original document filed. All papers filed
by or on behalf of a corporation or other business entity shall list all
its parents, subsidiaries and affiliates, or state that no such parents,
subsidiaries and affiliates exist (hereinafter “disclosure statement”).
Where New York authorities are cited in any submissions, New York Official
Law Report citations shall be included, if available. Copies of decisions
that are not officially published, or are not otherwise readily available,
shall be included in the submission in which such decisions are cited. |
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| (d) |
Paper quality, size
and binding. Paper shall be opaque, unglazed, white and eleven by eight
and one-half inches. Briefs, appendices, records and motion papers shall
be bound on the left side in a manner that keeps all pages securely together,
without plastic covers or any metal fasteners or similar hard material that
protrudes or presents a bulky surface or sharp edge. |
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| (e) |
Computer-generated
papers filed. Papers filed prepared on a computer shall be printed in
either a serifed, proportionally spaced typeface, such as Times Roman, or
a serifed monospaced typeface, such as Courier. Narrow or condensed typefaces
and condensed font spacing shall not be used. Except in headings, words
shall not be in bold type or type consisting of all capital letters. |
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(1) |
Papers
filed using a proportionally-spaced typeface. The body of any papers
filed using a proportionally-spaced typeface shall be printed in 14-point
type. Footnotes shall be printed in type of no less than 12 points.
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| (2) |
Papers filed
using a monospaced typeface. The body of any papers filed using a
monospaced typeface shall be printed in 12-point type containing no
more than 10 and one-half characters per inch. Footnotes shall be
printed in type of no less than 10 points. |
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| (f) |
Typewritten papers
filed. Typewritten papers filed shall be neatly prepared in clear type
no smaller than elite and in a pitch of no more than twelve characters per
inch. The original, ribbon typescript of any papers filed shall be signed
and filed as the original required by this Part. Carbon copies will not
be accepted. |
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| (g) |
Margins, line spacing
and page numbering of computer-generated and typewritten papers filed.
Computer-generated and typewritten papers filed shall have margins of one
inch on all sides of the page. Text shall be double-spaced, but quotations
more than two lines long may be indented and single-spaced. Headings and
footnotes may be single-spaced. Pages shall be consecutively numbered in
the center of the bottom margin of each page. |
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| (h) |
Handwritten papers.
Self-represented litigants may serve and file handwritten papers. Such papers
shall be neatly prepared in cursive script or hand printing in black ink.
Pages shall be consecutively numbered in the center of the bottom margin
of each page. The filing of handwritten papers is not encouraged. The clerk
of the Court may reject illegible papers. |
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| (i) |
Filing of Papers.
All papers filed shall be addressed to the clerk of the Court at 20 Eagle
Street, Albany, New York 12207-1095, not to a Judge or Judges of the Court,
and shall be served on each other party in accordance with the requirements
of this Part. Submissions shall not be filed by facsimile transmission or
electronic mail, except when requested by the clerk of the Court. |
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| (j) |
Acknowledgment of
receipt of papers. A request for an acknowledgment of receipt of papers
shall be accompanied by the papers filed and a self-addressed, postage pre-paid
postcard or envelope. Parties proceeding as poor persons or requesting poor
person relief shall comply with this requirement if acknowledgment of receipt
of papers is desired. |
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| (k) |
Nonconforming Papers.
The clerk of the Court may reject papers that do not conform to
the requirements of this Part. |
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| 500.2
Companion Filings on Compact Disk, Read-Only Memory (CD-ROM). |
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| (a) |
The Court allows the
submission of briefs, records or appendices on compact disk, readonly memory
(CD-ROM) as companions to the requisite number of printed briefs, records
and appendices filed and served in accordance with this Part if all parties
have consented to the filing of the companion CD-ROM brief and record or
appendix. The Court, by order on motion of any party or on its own motion,
may require such filing by a party or amicus. |
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| (b) |
The companion CD-ROM
brief, record or appendix shall comply with the current
technical specifications available from the clerk's office. |
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| (c) |
The companion CD-ROM
brief, record or appendix shall be identical in content and format including
page numbering) to the printed version, except that each also shall be word-searchable
and shall provide electronic links (hyperlinks) to the complete text of
any authorities cited therein, and to all documents or other material constituting
the record on appeal. The disk and container shall be labeled to indicate
the title of the case and the documents reproduced on the disk. |
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| (d) |
Unless the Court requires
a greater number, 10 disks or sets of disks shall be filed, with (i) proof
of service of at least one disk or set on each other party and (ii) a copy
of the parties' stipulation permitting, or the Court's order directing,
such filing. |
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| (e) |
Unless the Court requires
otherwise, appellant's filing and respondent's filing, or a joint filing
by appellant and respondent, are due 10 days after the final due date for
filing appellant's reply brief (see section 500.12[d]
of this Part). |
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| 500.3
Fees. |
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| (a) |
Upon the filing of
record material in a civil appeal pursuant to section 500.11,
500.12 or 500.26(a) of this
Part, appellant shall provide the clerk of the Court the fee in the amount
specified in CPLR 8022 in the form of an attorney’s check, certified
check, cashier’s check or money order payable to “State of New
York, Court of Appeals” unless: |
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(1) |
appellant demonstrates exemption from the fee requirements by statute
or other authority; |
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(2)
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other
payment arrangements have been made with the clerk of the Court; |
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(3) |
the appeal is
accompanied by a motion requesting poor person relief or a motion
requesting relief from payment of the filing fee; or |
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(4) |
appellant in
the Court of Appeals provides a copy of an order issued by any court
in the action or proceeding to which the appeal relates granting that
party poor person relief, together with a sworn affidavit that the
same financial circumstances exist at the time of filing in the Court
of Appeals as when the order granting poor person relief was issued. |
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| (b) |
Upon the filing of
each motion or cross motion in a civil case pursuant to section 500.21
through 500.24 or 500.26(b)
of this Part, movant shall provide the clerk of the Court with the fee in
the amount specified in CPLR 8022 in the form of an attorney’s check,
certified check, cashier’s check or money order payable to “State
of New York, Court of Appeals” unless: |
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| (1) |
movant
demonstrates exemption from the fee requirements by statute or other
authority; |
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| (2) |
other
payment arrangements have been made with the clerk of the Court; |
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(3) |
the motion or
cross motion is accompanied by a motion requesting poor person relief
or a motion requesting relief from payment of the filing fee; or |
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(4) |
movant in the
Court of Appeals provides a copy of an order issued by any court in
the action or proceeding to which the motion relates granting that
party poor person relief, together with a sworn affidavit that the
same financial circumstances exist at the time of filing in the Court
of Appeals as when the order granting poor person relief was issued. |
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| (c) |
Except as provided
in subsections (a) or (b) above or where otherwise specifically required
by law or by the Court, no fees shall be charged by the clerk of the Court. |
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| 500.4
Pro Hac Vice Admission. |
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An
attorney or the equivalent who is a member of the bar of another state,
territory, district or foreign country may apply to appear pro hac vice
with respect to a particular matter pending in this Court (see 22 NYCRR
520.11[a] [Rules of the Court of Appeals for
the Admission of Attorneys and Counselors at Law--Admission Pro Hac Vice]).
The application shall consist of letter request to the clerk of the Court,
with proof of service on each other party, and shall include current certificates
of good standing from each jurisdiction in which the applicant is admitted
and any orders of the courts below granting such relief in the matter for
which pro hac
vice status is sought. |
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| 500.5
Sealed Documents. |
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| (a) |
Documents under seal
are not available for public viewing. |
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| (b) |
Any papers sealed by
a court below or otherwise required by statute to be sealed shall be
sealed in the Court of Appeals. |
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| (c) |
Any party to an
appeal or motion may request that papers not sealed below be sealed in
this Court. Such requests shall be by an original and one copy of a motion
pursuant to section 500.21 of this Part, with proof
of service of one copy on each other party. |
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| (d) |
Documents and transcripts
ordered sealed by the Court of Appeals or a court below shall be reproduced
in separate volumes of the record on appeal. Each such volume shall be clearly
identified on the cover as containing sealed material. |
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| 500.6
Developments Affecting Appeals, Certified Questions, Motions and Criminal
Leave Applications. |
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| Counsel
shall timely inform the clerk’s office and each other party by letter
of all developments affecting appeals, section 500.27
certified questions, motions and criminal leave applications pending in
this Court, including contemplated and actual settlements, circumstances
or facts that could render the matter moot and pertinent developments in
applicable case law, statutes and regulations. The writing shall contain
proof of service on each other party. |
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500.7
Post-Briefing, Post-Submission and Post-Argument Communications.
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for communications providing the information required by section 500.6
of this Part or those specifically requested by the Court, post-briefing,
post-submission and post-argument written communications to the Court are
not favored, and shall be returned to the sender unless accepted by the
clerk of the Court following a written request with a copy of the proposed
submission and proof of timely service of one copy on each other party. |
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| 500.8
Withdrawal of Appeal, Motion or Criminal Leave Application. |
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| (a) |
Appeals. |
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| (1) |
Before
argument or submission, an appeal shall be marked withdrawn upon receipt
by the clerk of the Court of a stipulation of withdrawal signed by
counsel for all parties and by all self-represented litigants and,
in criminal appeals, additionally by defendant. |
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| (2) |
After
argument or submission, a request to withdraw an appeal shall be supported
by a stipulation of withdrawal signed by counsel for all parties and
by all selfrepresented litigants and, in criminal appeals, additionally
by defendant. The request shall be submitted to the Court for determination.
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| (b) |
Motions. |
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| (1) |
Before
its return date, a motion shall be marked withdrawn upon receipt by
the clerk of the Court of a written notice of withdrawal signed by
counsel for the moving party, with proof of service of one copy on
each other party. |
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| (2) |
After
the return date, a request to withdraw a motion shall be supported
by a stipulation of withdrawal signed by counsel for all parties and
by all selfrepresented litigants. The request shall be submitted to
the Court for determination. |
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| (c) |
Criminal Leave
Applications. A request to withdraw an application shall be in writing
and, if made on behalf of a defendant, shall be signed by defendant. The
request shall contain an indication of service of one copy upon all parties
and, if the request is made by defendant personally, proof of service upon
defense counsel, if defendant is represented. The request shall be submitted
to the assigned Judge for determination. |
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APPEALS
500.9
Preliminary Appeal Statement. |
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| (a) |
Within 10 days after
an appeal is taken by (1) filing a notice of appeal in the place and manner
required by CPLR 5515, (2) entry of an order granting a motion for leave
to appeal in a civil case, or (3) issuance of a certificate granting leave
to appeal in a noncapital criminal case, appellant shall file with the clerk
of the Court an original and one copy of a preliminary
appeal statement on the form prescribed by the Court, with the required
attachments and proof of service of one copy on each other party. No fee
is required at the time of filing the preliminary
appeal statement. |
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| (b) |
Where a party asserts
that a statute is unconstitutional, appellant shall give written notice
to the Attorney General before filing the preliminary
appeal statement, and a copy of the notification shall be attached to
the preliminary appeal statement. The notification and a copy of the preliminary
appeal statement shall be sent to the Solicitor General, Department
of Law, The Capitol, Albany, New York 12224. |
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| (c) |
After review of the
Preliminary Appeal Statement, the clerk will notify the parties either that
review pursuant to section 500.10 or section 500.11
of this Part shall commence or that the appeal shall proceed in the normal
course. |
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| 500.10
Examination of Subject Matter Jurisdiction. |
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On its own motion, the Court may examine its subject matter jurisdiction
over an appeal based on the papers submitted in accordance with section
500.9 of this Part. The clerk of the Court shall notify
all parties by letter when an appeal has been selected for examination pursuant
to this section, stating the jurisdictional concerns identified in reviewing
the preliminary appeal statement and setting a due date for filing and service
of comments in letter form from all parties. Such examination shall result
in dismissal of the appeal by the Court or in notification to the parties
that the appeal shall proceed either under the review process described
in section 500.11 of this Part or in the normal course,
with or without oral argument. This examination of jurisdiction shall not
preclude the Court from addressing any jurisdictional concerns at any time. |
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| 500.11
Alternative Procedure for Selected Appeals. |
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| (a) |
On its own motion,
the Court may review selected appeals by an alternative procedure. Such
appeals shall be determined on the intermediate appellate court record or
appendix and briefs, the writings in the courts below and additional letter
submissions on the merits. The clerk of the Court shall notify all parties
by letter when an appeal has been selected for review pursuant to this section.
Appellant may request such review in its preliminary appeal statement. Respondent
may request such review by letter to the clerk of the Court, with proof
of service of one copy on each other party within five days after the appeal
is taken. |
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| (b) |
Appeals may be selected
for alternative review on the basis of: |
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| (1) |
questions
of discretion, mixed questions of law and fact or affirmed findings
of fact, which are subject to a limited scope of review; |
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| (2) |
recent,
controlling precedent; |
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| (3) |
narrow issues
of law not of statewide importance; |
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| (4) |
nonpreserved
issues of law; |
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| (5) |
a party's request
for such review; or |
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| (6) |
other
appropriate factors. |
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| (c) |
Appellant’s
filing. Within 25 days after the date of the clerk of the Court's letter
initiating the alternative review procedure, appellant shall: |
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| (1) |
file
three copies of the intermediate appellate court record or appendix
and three copies of each brief filed by each party in the intermediate
appellate court. Original exhibits to be relied upon which are not
in the record or appendix at the intermediate appellate court shall
be filed or, if they are on file with the clerk of the trial court,
subpoenaed to this Court and the Court so advised by letter. Such
exhibits shall be clearly identified and, where appropriate, their
authenticity shall be certified or stipulated to; |
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| (2) |
file
an original and two copies of a letter stating its arguments in support
of appellant’s position on the merits. If appellant objects
to review pursuant to this section, the letter shall also explain
that position; |
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| (3) |
file a disclosure
statement pursuant to section 500.1(c) of this
Part, if necessary; |
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| (4) |
file proof of
service of one copy of its arguments on each other party; and |
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| (5) |
remit the fee,
if any, required by section 500.3(a) of this
Part. |
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| (d) |
Respondent’s
filing. Within 20 days after service of appellant’s submission,
respondent shall file an original and two copies of a letter stating its
arguments in support of its position on the merits. If respondent objects
to review pursuant to this section, the letter shall also explain that position.
Respondent shall file a disclosure statement pursuant to section 500.1(c)
of this Part, if necessary, and proof of service of one copy of its arguments
on each other party. |
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| (e) |
Abandonment of arguments.
A party shall be deemed to have abandoned any argument made in the intermediate
appellate court briefs not addressed or reserved in the written submission
to this Court. |
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| (f) |
Review of subject
matter jurisdiction. An appeal selected for review pursuant to this
section is subject to dismissal on the Court’s own motion, should
it be determined that the Court is without subject matter jurisdiction. |
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| (g) |
Termination of alternative
procedure. If the Court terminates its review of the appeal pursuant
to this section before disposition, the clerk of the Court will notify counsel
by letter and set a schedule for full briefing of the appeal. |
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| (h) |
Amicus curiae relief.
The Attorney General of the State of New York may file, no later than the
filing date set for respondent’s submission, an original and two copies
of an amicus curiae submission without leave of the Court, with proof of
service of one copy on each party. Any other proposed amicus curiae shall
request amicus curiae relief pursuant to section 500.23(a)(2)
of this Part. |
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| 500.12
Filing of Record Material and Briefs in Normal Course Appeals. |
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| (a) |
Scheduling letter.
Generally, in an appeal tracked for normal course treatment, the clerk of
the Court issues a scheduling letter after the filing of the preliminary
appeal statement. A scheduling letter also issues upon the termination of
an inquiry pursuant to section 500.10 or 500.11
of this Part. The scheduling letter sets the filing dates for record material
and briefs. |
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| (b) |
Appellant’s initial
filing. On or before the date specified in the scheduling letter, appellant
shall serve and file record material in compliance with section 500.14
of this Part, and shall remit the fee, if any, required by section 500.3(a)
of this Part. Appellant also shall file an original and 24 copies of a brief,
with proof of service of three copies on each other party. If no scheduling
letter is issued, appellant’s papers shall be served and filed within
60 days after appellant took the appeal by (1) filing a notice of appeal
in the place and manner required by CPLR 5515, (2) entry of an order granting
a motion for leave to appeal in a civil case, or (3) issuance of a certificate
granting leave to appeal in a non-capital criminal case. |
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| (c) |
Respondent’s
filing. On or before the date specified in the scheduling letter, respondent
shall serve and file an original and 24 copies of a brief and a supplementary
appendix, if any, with proof of service of three copies on each other party.
If no scheduling letter is issued, respondent’s papers shall be filed
within 45 days after service of appellant’s brief. |
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| (d) |
Reply briefs.
A reply brief is not required but may be served and filed by appellant on
or before the date specified in the scheduling letter. If no scheduling
letter is issued, a reply brief may be served and filed within 15 days after
service of respondent ’s brief. Where cross appeals are filed, the
cross appellant may serve and file a reply brief to the main appellant’s
responsive brief. An original and 24 copies of a reply brief shall be served
and filed, with proof of service of three copies on each other party. |
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| (e) |
Amicus curiae briefs.
The Attorney General of the State of New York may file, no later than the
filing date set for respondent’s brief, an original and 24 copies
of an amicus curiae brief without leave of the Court, with proof of service
of three copies on each party. Any other proposed amicus curiae shall request
amicus curiae relief pursuant to section 500.23(a)(1)
of this Part. |
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| (f) |
Briefs in response
to amicus curiae briefs. Briefs in response to an amicus curiae brief
are not required but may be served and filed by a party whose position is
adverse to that of the amicus curiae. The brief shall be served and filed
within 15 days after the date of this Court’s order granting a motion
for amicus curiae relief or within 15 days after the service of an amicus
curiae brief by the Attorney General of the State of New York. An original
and 24 copies shall be filed, with proof of service of three copies on each
other party and one copy on each amicus curiae. |
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| (g) |
Sur reply briefs.
Sur reply briefs are not permitted. |
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| 500.13
Content and Form of Briefs in Normal Course Appeals. |
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| (a) |
Content. All
briefs shall conform to the requirements of section 500.1
of this Part and contain a table of contents, a table of cases and authorities
and a disclosure statement pursuant to section 500.1(c)
of this Part, if necessary. Respondent’s brief may have a supplementary
appendix attached to it. The original of each brief shall be signed and
dated, shall have the affidavit of service affixed to the inside of the
back cover and shall be identified on the front cover as the original. |
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| (b) |
Brief covers.
Brief covers shall be white and shall contain the caption of the case and
name, address, telephone number, and facsimile number of counsel or self-represented
litigant and the party on whose behalf the brief is submitted, and the date
on which the brief was completed. In the upper right corner, the brief cover
shall indicate whether the party proposes to submit the brief without oral
argument or, if argument time is requested, the amount of time requested
and the name of the person who will present oral argument (see section 500.18
of this Part). If a time request does not appear on the brief, generally
no more than 10 minutes will be assigned. The Court will determine the argument
time, if any, to be assigned to each party. |
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| 500.14
Records, Appendices and Exhibits in Normal Course Appeals. |
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| (a) |
Record material. Appellant
shall supply the Court with record material in one of the following ways: |
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| (1) |
Appellant
may subpoena the original file to this Court from the clerk of the
court of original instance or other custodian, and submit original
exhibits to be relied upon, and supplement these with an original
and 24 copies of an appendix conforming to subdivision (b) below,
with proof of service of three copies of the appendix on each other
party. 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. |
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| (2) |
Appellant
may file with the clerk of the Court one copy of the reproduced record
used at the court below. This record shall be supplemented by an original
and 24 copies of an appendix conforming to subdivision (b) below,
with proof of service of three copies of the appendix on each other
party. |
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| (3) |
Appellant may
file with the clerk of the Court an original and 24 copies of a new
and full record which shall include the record used at the court below,
the notice of appeal or order granting leave to appeal to this Court,
the decision and order appealed from to this Court, and any other
decision and order brought up for review, with proof of service of
three copies of the new record on each other party. |
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| (b) |
Appendix. An
appendix shall conform to the requirements of CPLR 5528 and 5529, and shall
be sufficient by itself to permit the Court to review the issues raised
on appeal without resort to the original file (see subsection [a][1] of
this section) or reproduced record used at the court below (see subsection
[a][2] of this section). The appendix shall include, as relevant to the
appeal, the following: |
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| (1) |
the
notice of appeal or order or certificate granting leave to appeal; |
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| (2) |
the
order, judgment or determination appealed from to this Court; |
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| (3) |
any order, judgment
or determination which is the subject of the order appealed from,
or which is otherwise brought up for review; |
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| (4) |
any decision
or opinion relating to the orders set forth in subsections (b)(2)
and (3) above; and |
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| (5) |
the testimony,
affidavits, and written or photographic exhibits useful to the determination
of the questions raised on appeal. |
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| (c) |
Respondent’s
appendix. A respondent’s brief may include a supplementary appendix. |
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| (d) |
Inadequate appendix. When appellant has filed an inadequate appendix, respondent may move to
strike the appendix (see section 500.21 of this Part) or may submit an original
and 24 copies of an appendix containing such additional parts of the record
as respondent deems necessary to consider the questions involved, with proof
of service of three copies of the appendix on each other party. The Court
may direct appellant to supplement the appendix with additional parts of
the record it deems necessary to consider the questions involved. |
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| (e) |
Correctness of the
record. The correctness of the reproduced record or the appendix and
additional papers shall be authenticated pursuant to CPLR 2105 or stipulated
to pursuant to CPLR 5532. |
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| 500.15 Extensions of Time. |
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The clerk of the Court is authorized to grant, for good cause shown, a reasonable
extension of time for filing papers on an appeal. A request for an extension
may be by telephone call to the clerk's office, and shall be made no earlier
than 20 days before the filing due date set by the clerk’s office
or otherwise prescribed by this Part. The party requesting an extension
shall advise the clerk of the Court of the position of each other party
with regard to the request. A party granted an extension shall file a confirmation
letter, with proof of service of one copy on each other party, unless the
clerk’s office has notified all parties in writing of the determination
of the request. |
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| 500.16 Failure to Proceed or File Papers. |
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| (a) |
Dismissal of appeal.
If appellant has not filed and served the papers required by section 500.11,
500.12 or 500.26(a) of this
Part within the time set by the clerk’s office or otherwise prescribed
by this Part, the clerk of the Court shall enter an order dismissing the
appeal. |
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| (b) |
Preclusion. If respondent
has not filed and served the papers required by section 500.11,
500.12 or 500.26(a) of this
Part within the time set by the clerk’s office or otherwise prescribed
by this Part, the clerk of the Court shall enter an order precluding respondent's
filing. |
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| (c) |
Judicial review.
The Court may review dismissal and preclusion orders entered pursuant to
subsections (a) and (b) above by motion on notice in accordance with section
500.21 of this Part. |
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| 500.17
Calendar. |
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| (a) |
Notification of
argument time and date. When the calendar has been prepared, the clerk
of the Court shall advise
counsel by letter of the date and time assigned for oral argument. |
| |
|
| (b) |
Calendar preferences.
A party seeking a preference shall address a letter to the clerk of the
Court, with proof of service of one copy on each other party. The letter
shall state why a preference is needed, why alternative remedies, such as
review pursuant to section 500.11 of this Part or
submission without argument, are not appropriate, and opposing counsel's
position on the request. |
| |
|
| (c) |
Notification of
unavailability. Counsel have a continuing obligation to notify the clerk’s
office of days of known or possible unavailability for oral argument during
the Court's scheduled Albany sessions. |
| |
|
| (d) |
Adjournments.
Requests for adjournment of a calendared appeal are not favored. A party
seeking an adjournment shall address a letter to the clerk of the Court,
with proof of service of one copy on each other party. The letter shall
state why the adjournment is necessary, why submission on the brief filed
and having substitute counsel argue are not viable alternatives, and opposing
counsel’s position on the request. |
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|
| 500.18
Oral Argument. |
| |
|
| (a) |
Argument time.
Maximum argument time is 30 minutes per party, unless otherwise directed
or permitted by the Court upon advance request by letter addressed to the
clerk of the Court with proof of service of one copy on each other party.
In requesting argument time, counsel shall presume the Court’s familiarity
with the facts, procedural history and legal issues the appeal presents.
The Court may assign time for argument that varies from a party’s
request and may determine that the appeal be submitted by any party or all
parties without oral argument (see section 500.13[b]
of this Part). |
| |
|
| (b) |
Arguing counsel.
Only one counsel is permitted to argue for a party, unless otherwise directed
or permitted by the Court upon advance request by letter addressed to
the clerk of the Court with proof of service of one copy on each other
party. |
| |
|
| (c) |
Rebuttal. Prior
to beginning argument, appellant may orally request permission from the
Chief Judge to reserve a specific number of minutes for rebuttal. The time
reserved shall be subtracted from the total time assigned to appellant.
Respondent may not request permission to reserve time for sur-rebuttal. |
| |
|
| 500.19
Remittitur. |
| |
|
| (a) |
The remittitur of the
Court, containing the Court’s adjudication, together with the return
papers filed with the Court, shall be sent to the clerk of the court of
original instance or to the clerk of the court to which the case is remitted,
there to be proceeded upon according to law. |
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|
| (b) |
The court of original
instance or the court to which the case is remitted issues any order to
effect the adjudication in this Court’s remittitur, including an award
of costs. |
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|
CRIMINAL
LEAVE APPLICATIONS
500.20
Criminal Leave Applications. |
| |
|
| (a) |
Letter application.
Applications to the Chief Judge for leave to appeal in a criminal case (CPL
460.20) shall be by letter addressed to 20 Eagle Street, Albany, New York
12207-1095, and shall be sent to the clerk of the Court, with proof of service
of one copy on the adverse party. The letter shall indicate: |
| |
| |
|
| (1) |
the
names of all codefendants in the trial court, if any, and the status
of their appeals, if known; |
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|
| (2) |
whether
an application has been addressed to a justice of the Appellate Division; |
| |
|
| (3) |
whether
oral argument in person or by telephone conference call is requested;
and |
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|
| (4) |
the grounds upon
which leave to appeal is sought. Particular written attention shall
be given to 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. |
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|
|
| |
After the application
is assigned to a Judge for review, counsel will be given an opportunity
to serve and file additional submissions, if any, and opposing counsel will
be given an opportunity to respond. |
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|
| (b) |
Material to be provided
with application. |
| |
| |
|
| (1) |
Orders
of intermediate appellate courts determining appeals to those courts.
An application for leave to appeal from an intermediate appellate
court order determining an appeal taken to that court shall include: |
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|
| |
(i)
one copy of each brief submitted by defendant to the intermediate
appellate court; |
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|
| |
(ii)
one copy of each brief submitted by the People to the intermediate
appellate court; |
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|
| |
(iii) the order
and decision of the intermediate appellate court sought to be appealed
from; and |
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|
| |
(iv) all relevant
opinions or memoranda of the courts below, along with any other papers
to be relied on in furtherance of the application. |
| |
|
| (2) |
Orders of
intermediate appellate courts determining applications for writs of
error coram nobis. An application for leave to appeal from an
intermediate appellate court order determining an application for
coram nobis relief shall include: |
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|
| |
(i) the order
and decision sought to be appealed from; |
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|
| |
(ii) the papers
in support of and opposing the application filed in the intermediate
appellate court; and |
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|
| |
(iii) the intermediate
appellate court decision and order sought to be vacated, as well as
the briefs filed on the underlying appeal, if available. |
| |
|
|
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|
| (c) |
Assignment.
The Chief Judge directs the assignment of each application to a Judge of
the Court through the clerk of the Court; counsel shall not apply directly
to a Judge or request that an application be assigned to a particular Judge.
The assigned Judge shall advise the parties if oral argument of the application
will be entertained. |
| |
|
| (d) |
Reargument or reconsideration.
Requests for reargument or reconsideration shall be in letter form addressed
to the clerk of the Court, with proof of service on the adverse party, and
shall be assigned to the Judge who ruled on the original application. A
request for reargument or reconsideration shall 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 reargument
or reconsideration request shall be served not later than 30 days after
the date of the certificate determining the application of which reargument
or reconsideration is sought. |
| |
|
| (e) |
Counsel. This
Court does not assign counsel for criminal leave applications. One set of
motion papers addressed to this Court under section 500.21
of this Part for assignment of counsel on a criminal appeal may be filed,
with proof of service of one copy on the adverse party, only after leave
to appeal is granted. |
| |
|
| (f) |
Stay requests.
Whether incorporated in an application for leave to appeal or made separately
by letter with proof of service of one copy on the adverse party, a request
for a stay (CPL 460.60; 530.50) shall state: |
| |
| |
|
| (1) |
whether
the relief sought has been previously requested; |
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|
| (2) |
whether defendant is presently incarcerated and the incarceration
status, if known,
of any co-defendants; and, |
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|
| (3) |
if
the defendant is at liberty, |
| |
| |
|
| (i)
whether a surrender date has been set; and |
| |
|
| (ii)
the conditions of release (e.g., on defendant's own recognizance
or on a set bail amount). |
| |
|
|
|
| (g) |
Applications for extensions
of time to seek leave to appeal. An application for an extension of time
to seek leave to appeal (CPL 460.30) shall be by one set of motion papers
in compliance with section 500.21 of this Part, with
proof of service of one copy on the adverse party. |
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|
MOTIONS
500.21
Motions - General Procedures. |
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|
| (a) |
Return date.
Regardless whether the Court is in session, motions shall be returnable
on a Monday or, if Monday is a legal holiday, the first business day of
the week unless otherwise provided by statute, order to show cause or stipulation
so ordered by a Judge of the Court. Motions shall be submitted without oral
argument, unless the Court directs otherwise. No adjournments shall be permitted
other than in those limited instances provided by statute (CPLR 321[c] and
1022). |
| |
|
| (b) |
Notice and service.
Movant shall serve a notice of motion and supporting papers on sufficient
notice to each other party, as set forth in the CPLR and below. In computing
the notice period, the date of service shall not be included. |
| |
| |
|
| (1)
|
When
movant’s papers are personally served, movant shall give at
least eight days' notice (CPLR 2214[b]). |
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|
| (2) |
When
movant’s papers are served by regular mail, movant shall give
at least 13 days' notice (CPLR 2103[b][2]). |
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|
| (3) |
When
movant’s papers are served by overnight delivery service, movant
shall give at least nine days' notice (CPLR 2103[b][6]). |
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|
| (4) |
When movant’s
papers are served by facsimile transmission, movant shall comply
with CPLR 2103(b)(5), and give at least eight days' notice. |
| |
|
|
| (c) |
Filing. Unless
otherwise permitted by the Court or clerk of the Court, movant shall file
its papers, with proof of service on each other party of the required number
of copies, at Court of Appeals Hall no later than noon on the Friday preceding
the return date. On or before the return date of the motion, respondent
may file papers in opposition to the motion, with proof of service on each
other party of the required number of copies. Submissions shall not be filed
by facsimile transmission or electronic mail, except when requested by the
clerk of the Court. The Court’s motion practice does not permit the
filing of reply briefs and memoranda. A request for permission to file papers
after the return date of the motion is governed by section 500.7
of this Part. |
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|
| (d) |
Number of required
copies. Except in cases of indigency, where subsection (g) below applies,
the number of copies required to be filed is as follows: |
| |
| |
|
| (1)
|
Motions
for permission to appeal in civil cases. Movant shall file an
original and six copies of its papers, with proof of service of two
copies on each other party. Respondent may file an original and six
copies of papers in opposition to the motion, with proof of service
of two copies on each other party. |
| |
|
| (2) |
Motions
for reargument of appeals, reargument of motions for permission to
appeal and reargument of decisions on certified questions. Movant
shall file an original and six copies of its papers, with proof of
service of two copies on each other party. Respondent may file an
original and six copies of papers in opposition to the motion, with
proof of service of two copies on each other party. |
| |
|
| (3) |
Other motions.
For motions other than those addressed in subsections (d)(1) and (2)
above, movant shall file an original and one copy of its papers, with
proof of service of one copy on each other party. Respondent may file
an original and one copy of papers in opposition to the motion, with
proof of service of one copy on each other party. |
| |
|
|
| (e) |
Fee required.
Movant shall remit the fee, if any, required by section 500.3(b)
of this Part with each motion and cross motion filed. |
| |
|
| (f) |
Form of papers.
Movant’s papers and opposing papers shall comply in form with section
500.1 of this Part. The papers shall include a disclosure
statement pursuant to section 500.1(c) of this Part,
if required. |
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|
| (g) |
Proof of indigency.
Any motion may be made on one set of papers, with proof of service of one
copy on each other party, where: |
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| |
|
| (1) |
the motion requests poor person relief and contains the information
required by CPLR 1101(a), or
|
| |
|
| (2) |
movant
provides a copy of an order, issued by any court in the action or
proceeding to which the motion relates, granting that party poor person
relief, together with a sworn affidavit that the same financial circumstances
exist at the time of filing in the Court of Appeals as when the order
granting poor person relief was issued. |
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|
|
| 500.22
Motions for Permission to Appeal in Civil Cases. |
| |
|
| (a) |
Filing and notice.
Movant shall file an original and six copies of its papers, with proof of
service of two copies on each other party. The motion shall be noticed for
a return date in compliance with CPLR 5516 and section 500.21(b)
of this Part. |
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|
| (b) |
Content. Movant’s
papers shall be a single document, bound on the left, and shall contain
in the order here indicated: |
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| |
|
| (1) |
A notice of motion (see CPLR 2214). |
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|
| (2) |
A statement of the procedural history of the case, including a showing
of the timeliness of the motion. |
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|
| |
(i)
If no prior motion for leave to appeal to the Court of Appeals was
filed at the Appellate Division, movant’s papers to this Court
shall demonstrate timeliness by stating the date movant was served
(see CPLR 2103[b]) with the order or judgment sought to be appealed
from, with notice of entry. |
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|
| |
(ii) If a prior
motion for leave to appeal to the Court of Appeals was filed at the
Appellate Division, movant’s papers filed in this Court shall
demonstrate that the timeliness chain is intact by stating: |
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| |
|
| |
(a)
the date movant was served with the order or judgment sought
to be appealed from, with notice of entry, |
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|
| |
(b) the date movant served the notice of motion addressed to
the Appellate Division upon each other party, and |
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|
| |
(c) the date movant was served with the Appellate Division order
denying leave to appeal with notice of entry. |
|
| |
|
| (3) |
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 appealable by permission of the Court of Appeals (see CPLR
5602[a][2]). |
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|
| (4) |
A concise statement
of the questions presented for review and why the questions presented
merit review by this Court, such as that the issues are novel or of
public importance, present a conflict with prior decisions of this
Court, or involve a conflict among the departments of the Appellate
Division. Movant shall identify the particular portions of the record
where the questions sought to be reviewed are raised and preserved. |
| |
|
| (5) |
A disclosure
statement pursuant to section 500.1(c) of this
Part, if required. |
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|
| (6) |
Copies of the
order or judgment sought to be appealed from with notice of entry,
as well as copies of all relevant orders, opinions or memoranda rendered
in the courts below. The papers shall state if no opinion was rendered. |
| |
|
|
| (c) |
Additional documents.
Movant shall file with its papers one copy of the record below, or appendix
if the appendix method was used in the court below, and one copy of the
briefs filed below by each of the parties. |
| |
|
| (d) |
Opposing papers.
Respondent may file an original and six copies of papers in opposition to
the motion, with proof of service of two copies on each other party. The
opposing papers shall state concisely respondent’s argument for dismissal
or denial of the motion. |
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|
| 500.23
Amicus Curiae Relief. |
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|
| |
Any non-party other
than the Attorney General seeking to file an amicus brief on an appeal,
certified question or motion for leave to appeal must obtain permission
by motion. |
| |
|
| (a) |
Motions. |
| |
| |
|
| (1) |
Amicus
curiae relief on normal course appeals and normal course certified
questions. Movant shall file an original and one copy of its papers,
accompanied by one copy of a proposed brief, with proof of service
of one copy on each other party. The motion shall be noticed for a
return date no later than the Court session preceding the session
in which argument or submission of the appeal or certified question
is scheduled. If the motion is granted, an original and 24 copies
of the brief shall be filed, with proof of service of three copies
on each party, within the time set by the Court’s order. |
| |
|
| (2) |
Amicus curiae relief on appeals selected for review by the alternative
procedure. Movant shall file an original and one copy of its papers,
accompanied by an original and two copies of the proposed submission,
with proof of service of one copy on each other party. The motion
shall be noticed for a return date no later than the filing date set
for respondent’s submission on the appeal. |
| |
|
| (3) |
Amicus curiae relief on motions for permission to appeal in civil
cases. Movant shall file an original and one copy of its papers,
accompanied by one copy of a proposed brief, with proof of service
of one copy on each other party. The motion shall be noticed for a
return date as soon as practicable after the return date of the motion
for permission to appeal to which it relates. The granting of a motion
to appear amicus curiae on a motion for permission to appeal does
not authorize the movant to appear amicus on the subsequent appeal.
A new motion for amicus curiae relief on the appeal must be brought
pursuant to subsection (a) (1) or (2) above. |
| |
|
| (4) |
Criteria.
Movant shall not present issues not raised before the courts below.
A motion for amicus curiae relief shall demonstrate that: |
| |
|
| |
(i) the parties
are not capable of a full and adequate presentation and that movants
could remedy this deficiency; |
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|
| |
(ii) the amicus
could identify law or arguments that might otherwise escape
the Court's consideration; or |
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|
| |
(iii) the proposed
amicus curiae brief otherwise would be of assistance to the
Court. |
| |
|
| (5) |
Opposing papers.
Respondent may file an original and one copy of papers in opposition
to the motion, with proof of service of one copy on each other party. |
| |
|
|
| (b) |
Amicus curiae filings
by the Attorney General. |
| |
| |
|
| (1) |
Amicus
curiae relief on motions for permission to appeal in civil cases.
The Attorney General shall file an original and one copy of the submission
with proof of service of one copy on each other party. The submission
shall be filed without leave of the Court on or before the return
date of the motion for permission to appeal. |
| |
|
| (2)
|
Amicus
curiae relief on normal course appeals and normal course certified
questions. See Rule 500.12(e). |
| |
|
| (3) |
Amicus curiae relief on appeals selected for review by the alternative
procedure. See Rule 500.11(h). |
|
| |
|
| 500.24
Motions for Reargument of Appeals, Motions and Decisions on Certified Questions. |
| |
|
| (a) |
Filing and notice.
Movant shall file an original and six copies of its papers, with proof of
service of two copies on each other party. An original and one copy of a
motion for reargument of a motion may be served and filed if filing of an
original and one copy of papers was allowed on the underlying motion pursuant
to section 500.21(d)(3). |
| |
|
| (b) |
Timeliness.
Movant shall serve the notice of motion not later than 30 days after the
appeal or motion sought to be reargued has been decided, unless otherwise
permitted by the Court. |
| |
|
| (c) |
Content. The
motion shall state briefly the ground upon which reargument is sought 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. |
| |
|
| (d) |
New matters.
The motion shall not be based on the assertion for the first time of new
arguments or points of law, except for extraordinary and compelling reasons. |
| |
|
| (e) |
Limitation on motions.
The Court shall entertain only one motion per party for reargument of a
specific appeal, motion or certified question decision. |
| |
|
| (f) |
Opposing papers.
Except on those motions described in section 500.21(d)(3),
respondent may file an original and six copies of papers in opposition to
the motion, with proof of service of two copies on each other party. The
opposing papers shall briefly state respondent's argument for dismissal
or denial of the motion. |
| |
|
| 500.25
Emergency Matters; Orders to Show Cause. |
| |
|
| A request
for emergency relief pending the determination of an appeal or a motion
for permission to appeal shall be brought on by order to show cause. The
applicant shall contact the clerk’s office in advance of the filing.
The papers shall be filed as directed by the clerk’s office. The order
to show cause shall include telephone and facsimile numbers for each attorney
and self-represented party, and a statement giving reasons for granting
the request. If there is no pending appeal or motion for permission to appeal,
the order to show cause shall bring on a motion for leave to appeal or be
accompanied by a notice of appeal or a motion for permission to appeal complying
with section 500.22 of this Part. There is no fee
for filing an order to show cause. If a Judge signs an order to show cause
bringing on a motion, movant shall pay the fee, if any, required by section
500.3(b) of this Part. |
| |
|
PRIMARY
ELECTION SESSION
500.26
Primary Election Session Procedures. |
| |
|
| (a) |
Appeals as of right
or by permission of the Appellate Division. |
| |
| |
|
| (1)
|
Appellant shall
immediately contact the clerk’s office by telephone upon receipt
of the order from which the appeal is taken. |
| |
|
| (2) |
Appellant shall
immediately orally notify each respondent of the appeal. |
| |
|
| (3) |
Within the time
directed by the clerk of the Court, appellant shall file: |
| |
|
| |
(i) a copy of
the notice of appeal or order granting leave and a preliminary appeal
statement with proof of service on each other party; |
| |
|
| |
(ii) 25 copies
of appellant’s Appellate Division brief and, where applicable,
the record or appendix; |
| |
|
| |
(iii) the original
file, where applicable, which appellant shall obtain; |
| |
|
| |
|