Freestyle lawyering: an expedited appeal in the New York state courts.I. INTRODUCTION
New York's appellate courts A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. 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 ex·pe·dite
tr.v. ex·pe·dit·ed, ex·pe·dit·ing, ex·pe·dites
1. To speed up the progress of; accelerate.
2. 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 CPLR Civil Practice Law Rules (New York) ) 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 New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of practitioners, Siegel's New York Practice," (3) does not explain how to expedite an appeal. The sage advice of most experienced appellate Relating to appeals; reviews by superior courts of decisions of inferior courts or administrative agencies and other proceedings. 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 For this purpose. Meaning "to this" in Latin, it refers to dealing with special situations as they occur rather than functions that are repeated on a regular basis. See ad hoc query and ad hoc mode. basis that seems to follow unwritten LAW, UNWRITTEN, or lex non scripta. All the laws which do not come under the definition of written law; it is composed, principally, of the law of nature, the law of nations, the common law, and customs. 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 In several jurisdictions, the Appellate Division is the name of a court, or division of a court, that hears appeals from lower courts.
II. HOW TO SEEK A PREFERENCE AND EXPEDITED BRIEFING SCHEDULE
A. 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 In programming, a statement that evaluates an expression and provides a true or false answer based on the condition of the data. for appeal to the Court of Appeals; (3) the state of readiness See: defense readiness condition; weapons readiness state. 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 ir·rep·a·ra·ble
Impossible to repair, rectify, or amend: irreparable harm; irreparable damages.
[Middle English, from Old French, from Latin 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)
B. 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 pre·scribe
v. pre·scribed, pre·scrib·ing, pre·scribes
1. To set down as a rule or guide; enjoin. See Synonyms at dictate.
2. To order the use of (a medicine or other treatment). by CPLR 2214(b) (13) or as "directed by a justice of the court." (14) The rules do not prescribe pre·scribe
To give directions, either orally or in writing, for the preparation and administration of a remedy to be used in the treatment of a disease. 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 interim stay. (15) Under that procedure, the party seeking relief "must inform the clerk at the time of submission whether the opposing party has been notified of the application and whether such party opposes or consents to the granting of the relief sought." (16) The clerk will then assign the application to a particular justice, who may hear the request and grant relief. On occasion the justice will order the appeal expedited on hearing the initial application for relief without requiting a formal motion, but will in other cases set a return date for the motion. Although the local roles provide that oral argument will not be heard on motions, (17) applications made directly to an individual justice for emergency relief are often made in person. The resulting in-chambers discussions can give the applicant's attorney an opportunity to make her case as she explains the grounds for the application.
The first department's roles spell out a different procedure for expediting a criminal appeal of an order reducing or dismissing an indictment indictment (ĭndīt`mənt), in criminal law, formal written accusation naming specific persons and crimes. Persons suspected of crime may be rendered liable to trial by indictment, by presentment, or by information. . (18) In such a case, after the people file and serve a notice of appeal, either party may request, by letter or motion, that the court expedite the appeal. If a request is made, the court will hear the appeal on an expedited basis. (19)
C. The Appellate Division, Second Department
The Appellate Division, Second Department requires the most formal procedure: A preference may be obtained only "upon good cause shown by a motion directed to the court on notice to the other parties to the appeal." (20) The roles make no special provision for shortening the time it takes to bring a motion for expediting an appeal. (21) The court will, however, hear motions commenced by order to show cause, which, if signed by a justice, can bring the motion for expedited review before the court in days. (22) To obtain the signature on an order to show cause, counsel will be directed by the clerk's office to an informal heating in a justice's chambers. Opposing counsel will be notified and given an opportunity to attend. There, the parties will be asked to explain why the judge should or should not sign the order to show case, which will usually involve some discussion of the merits of the underlying appeal. (This can obviously be disconcerting dis·con·cert
tr.v. dis·con·cert·ed, dis·con·cert·ing, dis·con·certs
1. To upset the self-possession of; ruffle. See Synonyms at embarrass.
2. to the newly retained appellate lawyer who has not reviewed the file!) Appellate lawyers in the New York Attorney General's office will often bring the trial attorney to this informal show-cause heating in order to have available someone capable of discussing the merits of the case if necessary. Private appellate practitioners might do well to consider this strategy.
Like the other departments, the second department has a specific rule for criminal cases. The requirements are straightforward:
Appeals by the people pursuant to CPL 450.20(1-a) shall be granted a preference upon the request of either the appellant or the respondent. The appellant's brief shall include an appendix containing a copy of the indictment, the order appealed from and the decision. The respondent's brief may also include an appendix, if necessary. The appellant shall file, separate from the record, one copy of the grand jury minutes. (23)
D. The Appellate Division, Third Department
The Appellate Division, Third Department has no set roles for obtaining a discretionary preference in a civil case. Thus, practitioners in the third department will often begin the process by contacting the clerk's office. In some cases, the clerk will accept a letter making the request for expedited briefing and argument. (24) The court treats those letters, although informal, as motions, and decides them, without hearing, on the motion calendar.
In other cases, especially those in which the party seeking expedited review is also seeking a stay or to vacate To annul, set aside, or render void; to surrender possession or occupancy.
The term vacate has two common usages in the law. With respect to real property, to vacate the premises means to give up possession of the property and leave the area totally devoid of contents. a statutory stay, the clerk's office will direct the party to an individual judge. The party may then appear before the judge asking him or her to sign an order to show cause directing the interim relief and the expedition of the appeal. (25) As in the second department, counsel invoking this procedure in the third department should be prepared to discuss the merits of the case. In the author's experience, the in-chambers heating on the order to show cause can often be much longer and more thorough than the formal oral argument on appeal.
Like the other intermediate appellate courts, the third department has special provisions for expediting a criminal appeal. In cases involving orders of a "court reducing a count or counts of an indictment or dismissing an indictment and directing the filing of a prosecutor's information.... either party may request that the court expedite the appeal." (26) If a request is made, the court must hear the appeal on an expedited basis. (27)
The third department also has a special provision for expediting appeals in election cases. (28) They are given preference and "shall be brought on for argument on such terms and conditions as the presiding pre·side
intr.v. pre·sid·ed, pre·sid·ing, pre·sides
1. To hold the position of authority; act as chairperson or president.
2. To possess or exercise authority or control.
3. justice may direct upon application of any party to the proceeding." (29) Appeals in proceedings brought pursuant to any provision of the election law may be prosecuted upon a single-copy record and seven copies of a brief and appendix. (30)
E. The Appellate Division, Fourth Department
The Appellate Division, Fourth Department rules require that a party file and serve a motion to expedite an appeal or proceeding within fifteen days of the date on which the scheduling order is mailed. The motion must be supported by an affidavit affidavit
Written statement made voluntarily, confirmed by the oath or affirmation of the party making it, and signed before an officer empowered to administer such oaths. "setting forth with particularity par·tic·u·lar·i·ty
n. pl. par·tic·u·lar·i·ties
1. The quality or state of being particular rather than general.
2. the compelling circumstances CIRCUMSTANCES, evidence. The particulars which accompany a fact.
2. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us, or afar off; they are public or requiring that the appeal or proceeding be scheduled at the earliest available date." (31)
In practice, the fourth department's published procedure is inadequate. Even in the case of an emergency appeal, the parties must wait until the clerk issues a scheduling order to file a motion. Thus, as in the third department, appellate lawyers often invoke To activate a program, routine, function or process. the help of the clerk's office to obtain the fastest possible briefing schedule. In at least one case handled by the author, the clerk sent the Attorney General's office, which was seeking to expedite an appeal, directly to a judge's CERTIFICATE, JUDGE'S, English practice. The judge who tries the cause is authorized by several statutes in certain cases to certify, so as to decide when the party or parties shall or shall not be entitled to costs. chambers to prevail upon the judge to sign an order to show cause to bring the motion for a preference before the court. (32)
The fourth department rules also expressly provide a preference in election cases, indicating that they "shall be prosecuted upon one original record that has been stipulated to by all counsel or settled by the court from which the appeal is taken, and the original exhibits." (33) Upon learning "that an appeal pursuant to the Election Law is to be perfected, the clerk shall expeditiously ex·pe·di·tious
Acting or done with speed and efficiency. See Synonyms at fast1.
ex calendar the appeal and issue a schedule for the filing and service of the record and briefs." (34)
Like the other departments, the fourth department provides a special procedure for expediting the people's appeals in criminal cases:
The request to expedite the appeal may be made after the people file and serve the notice of appeal.... [A]n order shall be issued establishing an expedited briefing schedule and designating a term of court for argument of the appeal, giving a preference to the appeal. The appeal shall be expeditiously determined. (35)
III. PARTICULAR CASES: WHEN A NEW YORK COURT MUST (OR IS LIKELY TO) EXPEDITE AN APPEAL
In most cases, New York courts have absolute discretion to grant or deny a preference intended to advance the hearing of an appeal. In certain cases, however, statutory rules require expedited treatment of a particular appeal. For example, a 1991 procedural statute requires that a preference be granted in certain family court proceedings that involve juvenile delinquency juvenile delinquency, legal term for behavior of children and adolescents that in adults would be judged criminal under law. In the United States, definitions and age limits of juveniles vary, the maximum age being set at 14 years in some states and as high as 21 , persons in need of supervision (PINS), dependent children in foster care, child protective proceedings, and permanent neglect proceedings. (36) The Family Court Act provides for a preference in child-abuse proceedings. (37) The third and fourth departments of the appellate division explicitly recognize that election cases shall be given a preference. (38) All four departments of the appellate division give a preference to criminal appeals brought by the people. (39) If the appeal is entitled en·ti·tle
tr.v. en·ti·tled, en·ti·tling, en·ti·tles
1. To give a name or title to.
2. To furnish with a right or claim to something: by law to a preference, any party can serve and file a demand for a statutory preference, setting forth the provision of law relied upon for the preference. (40)
Even in cases in which the appellate courts are not required to grant preferences, there is some predictability as to when courts will grant them. Not surprisingly, the courts appear to be more inclined to grant preferences in cases in which irreparable harm will result if the question at issue is not promptly resolved. Indeed, all the courts seem to have implicitly adopted the standards set forth by the court of appeals: 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." (41) Thus, for example, New York courts have granted preferences where the appellant A person who, dissatisfied with the judgment rendered in a lawsuit decided in a lower court or the findings from a proceeding before an Administrative Agency, asks a superior court to review the decision. alleged that children's education would suffer during the appeal process, (42) where the appellant alleged that the State would illegally spend millions of dollars belonging to New York pensioners before the appeal could be decided, (43) where a juvenile alleged an ongoing violation of his right to due process, (44) and where the appellants alleged harm to children would occur. (45)
IV. AFTER THE COURT SPEEDS THINGS UP: PERFECTING THE APPEAL
None of New York's appellate courts provide a special procedure for hastening the process of perfecting the appeal. The regular rules for filing a record, including the transcript A generic term for any kind of copy, particularly an official or certified representation of the record of what took place in a court during a trial or other legal proceeding.
A transcript of record of any hearing or trial, apply. Thus, the party seeking to expedite the appeal, usually the appellant, must scramble To encode (encrypt) data in order to make it indecipherable without having a secret key to "unlock" it. The term came from the early days of cryptography which camouflaged analog transmissions with secret frequency patterns. to put together the record and obtain transcripts of the trial quickly enough to move the case along without undue delay. As preparing to proceed on a fully reproduced record takes valuable time, it often makes sense for the appellant in an expedited appeal to take advantage of the alternative appellate routes: the appendix system (46) or the "statement in lieu of Instead of; in place of; in substitution of. It does not mean in addition to. record on appeal." (47) A third option is to ask the court, when first applying to expedite the appeal, for permission to file the appeal on the original record. This procedure eliminates the need to make multiple copies of a record, thereby speeding the process considerably. Indeed, the courts specifically provide that expedited criminal appeals should be heard on the original record. (48) In extreme cases, the court of appeals can allow an expedited appeal to be heard on the appellate division briefs and record. (49) By invoking a truncated truncated adjective Shortened procedure with which the courts are familiar, the harried practitioner who must comply with an expedited briefing schedule in an emergency matter can eliminate some of the work needed to perfect the appeal, and so get it before the court more quickly.
V. WHEN TO EXPECT A DECISION
The grant of a preference does not ensure a speedy decision. In some cases, particularly election cases, the courts will hear and decide a case in a matter of days. (50) In other situations, though, the court might sit on appeal for months before issuing a decision in a particular case, despite having granted a preference in it. (51)
The court of appeals decides very few cases in less than a month from the date of the argument. Under normal circumstances, the court hears an argument during one session of its argument calendar, which lasts for a week or two every month from September September: see month. to June June: see month. , and issues a decision during the next month's session. The same pertains to most appeals heard on an expedited basis. Thus, expediting the appeal shortens the lawyers' deadlines, but not those that apply to the judges. Although this means that the case may not progress as quickly as the parties would like, it can at least yield a faster decision than they would be likely to secure using the briefing schedule for ordinary cases. (52)
The appellate divisions are even less predictable. Although they sit more regularly than the court of appeals, these intermediate courts will only rarely decide a case in days or hours. More often it takes them weeks or months. The attorney anxiously waiting for a decision has no way to know when a case pending in one of the appellate divisions' departments will be decided. And calling the clerk's office will not help at this stage. Experience indicates that the clerk will simply direct the attorney to check the daily decision lists.
Expediting an appeal in the New York courts is something of an art. The rules provide direct guidance in relatively few situations, so the attorney pursuing an expedited appeal in New York should consult the clerk of the relevant court (and perhaps an experienced appellate attorney) for guidance. If the case falls into one of the categories in which courts are required to expedite appeals, the attorney should take full advantage of the procedures sanctioned by the rules. In other cases, she should make every effort to characterize the case as one in which irreparable harm will result if the court fails promptly to hear and decide the appeal. Once a request for expedited treatment is granted, the attorney should consider submitting the case on less than a full appellate record, so that she can get it before the court as quickly as possible. Because the courts may not issue their decisions quickly even after granting a calendar preference and an expedited briefing schedule, every day the lawyer saves in preparing the case is a day that may shorten (audio, compression) Shorten - A form of lossless audio compression. the time her client spends waiting for a final decision.
(1). Schulz Schulz , Charles Monroe 1922-2000.
American cartoonist who created the Peanuts comic strip.
Noun 1. Schulz - United States cartoonist whose comic strip included the beagle Snoopy (1922-2000)
Charles M. v. State, 572 N.Y.S.2d 434, 435 (App. Div. 3d Dept. 1991). There are also certain categories of cases in which a preference is automatically granted. See Section III, infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.
infra prep. .
(2.) N.Y. Civ. P.L. & R. [section] 5521 (Consol. 2001).
(3.) David D. Siegel Siegel, a surname, is associated with two ethnic groups.
As a Jewish surname Siegel (סג"ל) it could be an acronym of Segan Levi (סגן לוי), meaning "Assistant Levite". , New York Practice (3d ed., West Group 2000).
(4.) Any errors or mistakes are the author's alone. The views expressed in this article do not represent the views of the New York State Attorney General's Office.
(5.) 22 N.Y. Comp. Codes, R. & Regs. 500.8(b) (2002).
(8.) In an ordinary case, the appellant has sixty days from initiating the appeal in which to file an opening brief, the respondent's brief In The Supreme Court of the United States
JOHN GEDDES LAWRENCE AND TYRON GARNER, petitioners,
STATE OF TEXAS, Respondent. is due forty-five days after appellant's brief is filed, and the appellant's reply brief is due ten days later. 22 N.Y. Comp. Codes, R. & Regs. 500.5(d), (f) (2002); N.Y. Comp. Codes, R. and Regs. 500.7(a) (2002); see also 22 N.Y. Comp. Codes, R. & Regs. 500.1(b)(5) (2002) (allowing additional time if the parties file CD-ROM CD-ROM: see compact disc.
in full compact disc read-only memory
Type of computer storage medium that is read optically (e.g., by a laser). briefs).
(9.) See e.g. Dist. Council 82, AFSCME AFSCME American Federation of State, County & Municipal Employees v. Cuomo Cuomo may be:
The term waiver is used in many legal contexts. of filing fees).
(10.) 22 N.Y. Comp. Codes, R. & Regs. 600.12(a)(2) (2002).
(12.) The author is unaware of any case in which a letter or oral request for a preference was accepted by the clerk's office.
(13.) "A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard." N.Y. Civ. P. L. & R. [section] 2214(b) (Consol. 2001).
(14.) N.Y. Comp. Codes, R. & Regs. 600.2(a)(4)(ii) (2002); see also id. 600.2(a)(1).
(15.) N.Y. Comp. Codes, R. & Regs. 600.2(a)(7) (2002).
(17.) 22 N.Y. Comp. Codes, R. & Regs. 600.2(d)(1) (2002).
(18.) Id. 600.8(e).
(19.) Id. 600.8(e)(2).
(20.) 22 N.Y. Comp. Codes, R. & Regs. 670.7(b)(2) (2002).
(21.) Id. 670.5(a) (providing that motions shall be made on the eight-day Adj. 1. eight-day - lasting for eight days
long - primarily temporal sense; being or indicating a relatively great or greater than average duration or passage of time or a duration as specified; "a long life"; "a long boring speech"; "a long time"; "a long notice period set by CPLR 2214).
(22.) Id. 670.5(b) (providing that "[a]ll papers in opposition to any motion or proceeding initiated in the court by an order to show cause shall be filed with the clerk on or before 9:30 a.m. of the return date" and that "[o]n the return date, the motion or proceeding will be deemed submitted to the court"). An order to show cause is a substitute for a notice of motion, which shortens the notice time. See N.Y. Civ. P. L. & R. [section] 2214(d); see also Siegel supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. n. 3, at [subsection subsection
any of the smaller parts into which a section may be divided
Noun 1. subsection - a section of a section; a part of a part; i.e. ] 245, 248 ("With an order to show cause the hearing can be brought on at any time the court directs ... as close as the next day. If the court is convinced there is a real emergency, it can schedule the hearing for a few hours later or in the direst case `forthwith' the service of the order to show cause.").
(23.) 22 N.Y. Comp. Codes, R. & Regs. 670.12(e) (2002).
(24.) E.g. Shulz v. People, 585 N.Y.S.2d 801 (App. Div. 3d Dept. 1992) (granting the attorney general's letter request for a calendar preference and an expedited briefing schedule). The respondents In the context of marketing research, a representative sample drawn from a larger population of people from whom information is collected and used to develop or confirm marketing strategy. used the same procedure to expedite the process in McDermott McDermott is a surname, and may refer to:
young girl gruesomely infested with the devil. [Am. Lit.: The Exorcist]
See : Possession , 599 N.Y.S.2d 718 (App. Div. 3d Dept. 1993) and McCall v. People., 640 N.Y.S.2d 347 (App. Div. 3d Dept. 1996). Telephone Interview with Peter G. Crary Crary may refer to:
The solicitor general is charged with representing the Executive Branch of the U.S. government in cases before the U.S. Supreme Court. , N.Y. State Atty. Gen. Off. (Feb. 14, 2002) (notes on file with author); e-mail from Peter G. Crary to Alicia R. Ouellette Ouellette is a name of French origin.
People named Ouellette include:
(25.) Petitioners successfully used this procedure in Bd. of Educ. of Roosevelt Roosevelt, town, United States
Roosevelt, uninc. residential town (1990 pop. 15,030), Nassau co., SE N.Y., on Long Island. A large retail business exists in Roosevelt, and the town has become the county's busiest economic area. C. Sch. Dist. v. Trustees of SUNY SUNY - State University of New York , 723 N.Y.S.2d 262 (App. Div. 3d Dept. 2001), a case handled by the author. Them, Justice Spain Spain, Span. España (āspä`nyä), officially Kingdom of Spain, constitutional monarchy (2005 est. pop. 40,341,000), 194,884 sq mi (504,750 sq km), including the Balearic and Canary islands, SW Europe. denied the request to vacate the stay, but expedited the appeal by setting down a very short briefing schedule and setting argument for two weeks from the date of the informal hearing.
(26.) 22 N.Y. Comp. Codes, R. & Regs. 800.14(h)(2) (2002).
(28.) Id. 800.16.
(31.) 22 N.Y. Comp. Codes, R. & Regs. 1000.10(d) (2002).
(32.) The case was Pouliot v. Marzella, which involved a dying woman who did in fact die before the appeal was heard. Because the case was then moot An issue presenting no real controversy.
Moot refers to a subject for academic argument. It is an abstract question that does not arise from existing facts or rights. , the Attorney General's office withdrew the appeal. The case is discussed at <http://www.familydecisions.org/ pouliot.html> (accessed April 29, 2002; copy on file with Journal of Appellate Practice and Process). Its procedural history is set forth in the Attorney General's brief, a copy of which is on file with The Journal of Appellate Practice and Process.
(33.) 22 N.Y. Comp. Codes, R. & .Regs. 1000.5(a) (2002).
(34.) Id. 1000.5(b).
(35.) Id. 1000.7(a), (b).
(36.) N.Y. Civ. P.L. & R. [section] 5521(b) (Consol. 2001).
(37.) N. Y. Fam. Ct. Act [section] 1112 (Consol. 2001).
(38.) See 22 N.Y. Comp. Codes, R. & Regs. 800.16 (2002); 22 N.Y. Comp. Codes, R. & Regs. 1000.5 (2002).
(39.) See supra nn. 18-19, 23, 26-27, 35 and accompanying text.
(40.) See 22 N.Y. Comp. Codes, R. & Regs. 600.12(a)(1) (2002); 22 N.Y. Comp. Codes, R. & Regs. 670.7(b)(1)(2002).
(41.) 22 N.Y. Comp. Codes, R. & Regs. 500.8(b) (2002).
(42.) Roosevelt C. Sch. Dist., 723 N.Y.S.2d at 262.
(43.) See McDermott, 599 N.Y.S. at 718; McCall, 640 N.Y.S.2d at 347.
(44.) People ex rel ex rel. conj. abbreviation for Latin ex relatione, meaning "upon being related" or "upon information," used in the title of a legal proceeding filed by a state attorney general (or the federal Department of Justice) on behalf of the government, on the instigation of . Kaufmann Kaufmann is a surname, with many variants such as Kauffmann, Kaufman, and Kauffman. In German, the name means merchant. It may refer to: Kaufmann
(45.) E.g. In re Emanuel S., 571 N.E.2d at 79.
(46.) See N.Y. Civ. P.L. & R. [section] 5528(a)(5) (Consol. 2001) (providing that the appendix is to contain "only such parts of the record ... as are necessary to consider the questions involved, including those parts the appellant reasonably assumes will be relied upon by the respondent In Equity practice, the party who answers a bill or other proceeding in equity. The party against whom an appeal or motion, an application for a court order, is instituted and who is required to answer in order to protect his or her interests. ").
(47.) See N.Y. Civ. P.L. & R. [section] 5527 (Consol. 2001) (indicating that the statement option is appropriate when "the questions presented by an appeal can be determined without an examination of all the pleadings pleadings: see procedure. and proceedings," and describing the required contents); see also Siegel, supra n. 3, at [section] 539.
(48.) For example, the first department's rules provide that
[t]he people shall file nine copies of a brief and an appendix, which shall include a copy of the indictment and the trial court's decision and order. The respondent shall file nine copies of a brief and, if necessary, an appendix. One copy of the brief and appendix shall be served on opposing counsel.... The appeal may be taken on one original record, which shall include copies of the indictment, the motion papers, the trial court's decision and order, and the notice of appeal.
22 N.Y. Comp. Codes, R. & Regs. 600.8(e)(3)(i), (ii) (2002). Similarly, the third department's rules for criminal appeals brought by the people provide that "[t]he appeal may be taken on one original record, which shall include copies of the indictment, the motion papers, the trial court's decision and order, and the notice of appeal." 22 N.Y. Comp. Codes, R. & Regs. 800.14(h)(3) (2002).
(49.) E-mail from Peter G. Crary to Alicia R. Ouellette, Expedited Appeal Article (May 3, 2002) (copy on file with author). Mr. Crary, who handled the case, noted that the Comptroller requested that relief in McCall, 640 N.Y.S.2d at 347. The Attorney General opposed the request, and it was denied. The case then settled.
(50.) See, for example, Cipolia v. Golisano, in which leave to appeal was granted on October October: see month. 25, argument was held on October 26, and a decision was issued on October 28. See Cipolia v. Golisano, 645 N.E.2d 1215 (N.Y. 1994) (indicating that leave to appeal was granted on October 25); Cipolia v. Golisano, 643 N.E.2d 514 (N.Y. 1994) (indicating that argument was held on October 26, and that the decision was issued on October 28).
(51.) E.g. In re Dana Dāna
almsgiving to poor, giftgiving to priests. [Hindu Rel.: Parrinder, 72]
See : Generosity G.M., 651 N.E.2d 920 (N.Y. 1995). Although the court granted this case a calendar preference and heard argument less than a month after leave was granted on May 9, 1995, it did not hand down a decision until November 1995. In re Dana G.M., 660 N.E.2d 397 (N.Y. 1995).
(52.) See supra n. 8.
Alicia R. Ouellette, Assistant Lawyering Professor, Albany Law School Albany Law School is an ABA accredited law school based in Albany, New York. Founded in 1851 by Robert H. Pruyn and others, Albany Law School is the oldest independent law school in the United States. . Previously Assistant Solicitor General in the Appeals Bureau of the New York State Attorney General's Office, and a confidential law clerk law clerk
A person, typically an attorney, employed as an assistant to a judge or another attorney, especially in order to gain legal experience. to the honorable Howard A. Levine, Associate Judge, New York Court of Appeals.