Freestyle lawyering: an expedited appeal in the New York state courts.

• Author: Ouellette, Alicia R.

1. INTRODUCTION

   New York's appellate courts normally hear cases on a first come, first served basis. Occasionally, however, when a party can show "urgency or good cause," (1) a court will expedite the appeal process by granting a calendar preference and an expedited briefing schedule. Determining how to obtain that preference and expedited briefing schedule can often be difficult because New York's roles of civil procedure (the CPLR) provide only that "[p]references in the hearing of an appeal may be granted in the discretion of the court to which the appeal is taken." (2) The statutory roles provide no guidance about how to seek a preference or what an application for a preference must show to be successful. Virtually no case law exists on the subject, and even the bible used by New York practitioners, Siegel's New York Practice," (3) does not explain how to expedite an appeal. The sage advice of most experienced appellate attorneys is, then, the most helpful: "Call the clerk's office."

   Calling the clerk makes sense because the procedures for expediting an appeal vary from court to court, and no single source systematically outlines the quirks of the procedure used by each court. There are some local court rules: The state's top court, the New York Court of Appeals, has an established procedure, as do two of the four intermediate appellate courts. The other two determine the procedure for dealing with emergency matters on an ad hoc basis that seems to follow unwritten rules that are known to, and understood by, a select few appellate experts.

   In some cases, the preferred procedure is a formal motion to be decided by a full panel. Sometimes, a letter request to the clerk's office is sufficient. At other times, a lawyer must go to the home chambers of an individual judge and ask him or her to sign an order to show cause. Because the preferred procedure for expediting a particular appeal depends upon the court in which the appeal will be heard and the facts of a particular case, New York practitioners must rely on experience, their best guess, or the advice of the clerk's office when determining how to initiate an expedited appeal. Obviously, this situation is not ideal. In the most urgent and stressful cases, practitioners must search around for the appropriate procedure, relying at times on nothing more concrete than the voice at the other end of a telephone.

   This article will attempt to provide some guidance to practitioners who wish to expedite an appeal in a New York court by first setting forth the existing rules for the court of appeals and each department of the Appellate Division. It will then set forth the preferred practices in those departments that lack published rules, as best those practices can be discerned from the experience of the author and members of the Appeals Bureau of the New York State Attorney General's Office. (4) It will further examine some instances in which New York appellate courts have granted preferences in order to illustrate the sorts of cases in which the effort to expedite an appeal is likely to be successful. Finally, the article will offer some practical tips for bringing an appeal on an expedited basis, including putting a record together and advising a client on when to expect a decision.

2. HOW TO SEEK A PREFERENCE AND EXPEDITED BRIEFING SCHEDULE

   1. The New York Court of Appeals

      The procedure for obtaining a preference from the court of appeals is simple: Write a letter to the clerk of the court with notice to all other counsel whose clients may be affected. (5) The letter must 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 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." (6) To obtain the relief sought, the party seeking the preference must make "a written showing of urgency, or potential irreparable harm, or public necessity, and, in all instances, lack of an available alternative remedy." (7)

      Although the rules do not explicitly provide for it, practitioners may use the same procedure to obtain an expedited briefing schedule. Indeed, if a case satisfies the court's requirements for obtaining a calendar preference, the normal lengthy briefing schedule (8) is unlikely to be satisfactory. Thus, the wise attorney includes in her letter to the clerk a request both for a calendar preference and an expedited briefing schedule.

      In some cases, practitioners use an alternative procedure that is not provided for in the court's rules. Rather than address the request for a preference to the clerk, those practitioners include a request for a calendar preference and expedited briefing schedule in their motions for leave to appeal. This method is useful when the motion for leave to appeal also includes a request that the motion for leave be decided on an expedited basis. The court considers these requests with the underlying motion and grants or denies them as is appropriate. (9)

   2. The Appellate Division, First Department

      The preferred procedure for obtaining a discretionary calendar preference and expedited briefing schedule for a civil case are less clear in the First Department of the Appellate Division than in the New York Court of Appeals. The first department requires an "application" made on notice to the other parties. (10) There is no further description of what form the application should take, but the rules allow the application to be granted "on good cause shown." (11) In practice, lawyers making an application generally do so by filing a formal motion. (12) Court rules provide that motions shall be noticed in the time prescribed by CPLR 2214(b) (13) or as "directed by a justice of the court." (14) The rules do not prescribe a procedure for asking a justice of the court to speed up the motion process itself.

      In practice, counsel seeking emergency review of an appeal in the first department short cut the time it takes for a motion by invoking the procedure for seeking an...